Calorie Ordinance Poses Problems for New York Restaurants

Published June 1, 2007

On March 1, Wendy’s International, Inc. removed calorie counts from its New York City franchise menus–the unintended consequence of a poorly crafted ordinance requiring restaurants to publish the information for customers.

The ordinance, passed in December, will take effect July 1 … but only for restaurants that already voluntarily provided the information–either on their menus, menu boards, or Web sites–as of March 1. Restaurants that did not post calorie counts by March 1 will not be required to do so under the ordinance.

“The reason we did it was to make sure we would comply with the regulation,” explained Wendy’s spokesman Denny Lynch. “We are finding it extremely difficult to find a way to put calorie information on the menu boards. Since we can’t find a way to do it, we have to comply with the regulation. If you don’t offer the information on March 1, then you won’t be required to have the information on your menu boards; so we got rid of the information.”

Confusing Ordinance

Wendy’s asked the New York City Department of Health if calorie information on posters would suffice. The department decided posters were not enough to comply, Lynch said.

The restaurant industry has voiced strong opposition to the ordinance, saying it unfairly penalizes major chains and fast food restaurants that already provide nutritional information, while establishments that do not do so go unscathed. The New York City health department estimates only 10 percent of the city’s restaurants will be affected by the ordinance. Most of the affected restaurants serve fast food.

Dr. Ruth Kava, director of nutrition at the Manhattan-based American Council on Science and Health, said the ordinance was confusing. A better solution would be to educate consumers about food and nutrition than to have government imposing ordinances on restaurants, according to Kava.

“It’s kind of a disincentive for restaurants to even provide the information now, because if they do, they’re going to be hit with this ordinance,” Kava said. “The board of health is into doing things that sound good, but we’re not sure at all the consequences will be good.

“I’m not in favor of this at all. People have to want to take advantage of the information, first of all, and know how to use it, second,” Kava continued. “I’m not sure who this is directed at, to be honest. Are they trying to say something to the chain restaurants that they’re not saying to the others? Because you can certainly go to another restaurant and get just as many calories. You can give people numbers and numbers and numbers, but if they don’t know how to use them, it defeats the purpose.”

Several Options

Wendy’s was not the only chain to remove calorie information in New York City franchises. White Castle and Quizno’s sandwich shops also have pulled the information from their Web sites and New York City locations.

Forecasting the problem some restaurants would have with the ordinance, city councilman Joel Rivera (D-Bronx) proposed another ordinance February 28 that would give restaurants optional places to post calorie information, such as table tents, stand-alone signs, posters, counter mats, tray liners, and computer kiosks.

At press time, no date had been set for a vote on Rivera’s measure, but Matthew Burdge, Rivera’s legislative director, said the ordinance has verbal support from 15 councilmen and is receiving mixed reviews from the others.

“We feel the menu board is going to cause way too much confusion when it comes to posting calorie information,” Burdge said. “There are so many other options for posting, and the councilman is looking to install a measure that is better than the one issued by the department of health. Who is to say that putting calorie information on the menu is the best way to do things? It’s not enough to put it there if people are not going to understand what it really means. The councilman just wants all nutrition [information] available before the point of sale.”

Lynch echoed those concerns. Because diners can customize their orders, an item like a Wendy’s Mandarin Chicken Salad can contain anywhere from 300 to 560 calories, depending on condiments, he said. When Wendy’s pointed this out to the department of health, Lynch said the company was told to publish the range–a tactic Lynch said will cause problems when customers begin asking how to customize their orders to achieve certain calorie counts.

Temporary Measure

According to a March 2 New York Times article, New York City Health Commissioner Thomas R. Frieden released a statement criticizing restaurants that removed calorie information, saying it should make people “wonder what [the companies] are so ashamed of.”

But Lynch said the removal isn’t permanent.

“This is not a blatant attempt to do anything wrong,” Lynch said. “If anything, we are trying to buy some time so we can figure this out. Our goal is to find a common-sense, practical solution. We want to provide nutrition information to consumers. We continue to do it and have been doing so for almost 30 years.”

Aricka Flowers ([email protected]) writes from Chicago.

For more information …

“Wendy’s Acts to Bypass City Order on Calories,” by Ray Rivera, The New York Times, March 2, 2007,