Calorie-Posting Rules: Unfair or Consumer Conscious?

A Big Mac has 540 calories and 29 grams of fat, a Whopper has 670 calories and 40 grams of fat, and a Baconator Single has 630 calories and 36 grams of fat. Still want that hamburger? If you said "yes," experts say you aren't alone.

The sweeping health-care reform signed into law by President Obama in March 2010 mandates food establishments post calorie information for patrons, but many restaurant owners are calling the requirement unnecessary and are finding loopholes.

The law, which falls under the “community health” umbrella of the health-care overhaul, would impact roughly 280,000 of the nation's 600,000 restaurants, according to Food and Drug Administration estimates.

As it stands now, the law requires restaurants with 20 or more locations as well as coffee houses, bakeries, and grocery stores to divulge calorie counts. But, as with any rule, there are exemptions and food providers are finding them. Just recently the movie theater industry gained exclusion from the obligation by arguing they don’t offer an entire meal. Also exempt are restaurants with fewer than 20 locations and vending machine companies with less than 13 locations.

With so many loopholes, many are wondering how much water the legislation really holds.

“Basically, the legislation is saying that Americans are fat because they are too dumb to know that when they get a Twinkie out of a vending machine it’s full of calories,” argues Michael Fenster, a cardiologist and certified chef who runs www.WhatsCookingwithDoc.com. “We are too dumb to know that a double bacon cheeseburger is not as healthy as a garden salad.”

According to the FDA, Americans consume an average of one-third of their daily calories when eating out. And despite that fact that they don’t offer full meals, a large movie theater popcorn from AMC reportedly contains 1,030 calories and 57 grams of saturated fat. Let’s not even get started on the prices.

“[Theaters] argued that people aren’t going to sit and have four courses and six drink refills when they’re at the movies,” says Fenster. “But they do offer things similar to what you get out of a vending machine, and vending machine owners will be required to list total calories. It’s just a crazy situation.”

But whether or not calories are listed, it won’t make a difference, Fenster argues.

“An analogous situation was when the government released tobacco warnings. They thought that once people knew smoking is bad, they would stop, but what they saw was absolutely no change,” he says. “Smoking only decreased when they started to tax it, because it’s a negative reinforcement.”

Since 2005, restaurant chain Applebee’s has had Weight Watchers (NYSE: WTW)  items that contain fewer than 550 calories on its menu, but Zane Tankel, president and CEO of Apple-Metro, which owns 35 Applebee’s (NYSE:DIN) restaurants in the New York area, says the healthy choices have yet to make a difference to diners.

“For years now, we’ve had 10-15 items on our menu with Weight Watchers points that are made according to Weight Watchers’ recipes, and at first we thought it was a big deal, because we are the only restaurant that offers it,” says Tankel. “But what we’ve found is that it hasn’t moved the needle at all. People just don’t go out to eat Weight Watchers’ food.”

Tankel says that while consumers want to have options, they rarely “execute” in making the smart choice. Most people will cook food at home if they want to eat healthy, but when they go out, they’re looking to splurge a little.

“There will always be a place for celebratory dinners with a big steak and a bottle of wine, but now restaurant owners will have to find ways to deliver food with fewer calories that’s still filling as people become more calorie conscious,” says Greg Dollarhyde, executive chairman of Zoe’s Kitchen and Baja Fresh.

Dollarhyde says customers might be surprised to see the actual calorie count on some of their favorite foods, but that people will always save from for their indulgencies.

“The new calorie count will only affect those people who are already cutting back,” he says.

Meanwhile, groups like the National Restaurant Association are firmly behind the calorie count movement.

“[We] strongly supported and advocated for the law that will provide consumers with uniform and consistent nutrition information in hundreds of thousands of restaurant locations nationwide,” said Dawn Sweeney, president and CEO of the National Restaurant Association in a press release earlier this month.

But if not all restaurants are required to participate in calorie display, will the movement lose traction?

“In New York City, there are almost 30,000 restaurants, but only about 100 of them fall under the 20-or-more locations category,” says Tankel. “It tells me this movement has no depth. If the concern is public health, why does it make a difference if you have one restaurant or 20?”

Tankel said that ironically, fine dining establishments that often have just one location are probably serving up some of the highest fat and calorie items around.

“If you look at fine dining, often they’re cooking with pure butter, bacon fat or duck fat, and that’s horrible for you. At Applebee’s we cook in pure canola oil, which is much better for you, yet we’re the ones they make display calories. It seems a little misguided.”

But even if all restaurants aren’t required to post calories, every little bit of consumer education that can get out there is good, says Danielle Schupp, a registered dietician and owner of www.SmartandSkinny.com.

“Once people learn the calories of an item, they can make an informed and educated decision about whether to consume that food or not,” says Schupp. “I think the key is showing people that it doesn't have to be painful or hard to make healthier food choices in order to lose weight. Small changes will add up to big weight loss, and it's not about dieting for a month or two, but small lifestyle changes that can be sustained.”