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House Health-Care Bill Would Require Restaurants to Post Calorie Counts; Separate Bill Would End Tax-Deducation for Children's Ads

Emily Bryson York
Ad Age
November 2, 2009

The proposed health-care legislation that is so much the subject of debate stands to force changes not only for doctors and insurers but also for chain restaurant marketers: The House bill also contains a provision requiring that they post calorie information.

First noted on, the mandate is Section 2572, buried deep within HR 3962, a 1,990-page document. The clause requires that any "restaurant or similar retail food establishment shall disclose in a clear and conspicuous manner" the number of calories associated with any food item.

Calorie information is already required at New York City restaurants, and California has passed similar statewide legislation. This mandate appears to go further, however, requiring not only calorie counts at chains with more than 20 locations, but also contextual information as to how the number of calories fits into daily guidelines. The requirements would also extend to vending machines.

Following calorie mandates, some chains have been caught with counts too low for certain dishes, or variable portion sizes being served. Restaurants and other food establishments would also be required to have a "reasonable basis" for nutrition disclosures, such as cookbooks and laboratory analyses. Specials that will be around for less than 60 days and test-market items available for less than 90 days are currently exempt in the legislation.

"We're very pleased that the nutrition information provision continues to garner bipartisan support, and we're pleased that the agreement is now moving forward in the House of Representatives," said Mike Donohue, VP-media relations for the National Restaurant Association.

Tax deductibility

It's unclear what impact such sweeping requirements would have on the fast-food industry. A recent New York University study showed that fast-food patrons actually consumed more calories than before the New York legislation, although they generally claimed to have made healthier choices.

Separately last week, Rep. Dennis Kucinich sent a letter to congressional colleagues announcing that he plans to propose legislation that eliminates the tax deductibility of advertising directed at children.

"Simply put, marketing to children works," Mr. Kucinich wrote. "Companies would not make such a substantial investment if it were ineffective."

In his letter, Mr. Kucinich, who is seeking co-sponsors to the bill, estimates that food and beverage companies annually spend $10 billion in advertising to children, citing a 2004 estimate from the National Academies of Science Institute of Medicine. The $10 billion figure was a widely circulated estimate that was a cornerstone for reform in 2007. At the time, a number of marketers including Kraft, Kellogg, General Mills, McDonald's and others signed on to a Better Business Bureau initiative to limit advertising to children, and focus on better-for-you foods. Last summer, however, the FTC sharply revised the estimate on food and beverage advertising to kids, to an annual total of $1.6 billion.

In an e-mail to American Advertising Federation members on Friday, Exec VP Clack Rector said, "Be assured that the AAF will do everything in our power to insure that advertising for all products remains fully deductible as a normal and necessary business expense."





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