Unlike packaged foods, inaccuracies due to portion size are unavoidable.  Labeling standardized packaged foods is much more practical than meals served at a restaurant or takeout facility.  It will be extremely difficult for restaurants to serve identical portions. This is one instance in which it may be punishable to give the consumer more than they paid for.  While S.1290 provides a 20% margin or error, it is still likely that retail food establishments may fall outside of that margin and risk not only fees for noncompliance but liability and frivolous lawsuits from consumers.   

Restaurants now have the flexibility to shop around for ingredients for their menu items.  In many instances, a retail food establishment will contact a distributor to put in a request and the distributor will ship the least expensive brand of the week.  Some options will vary greatly in nutritional value depending on the brand they purchase.  By implementing labeling requirements, restaurants will no longer be able to shop for the best priced ingredients and will find themselves locked into specific brands in order to avoid the high cost of constantly changing their menus.  Taking away this bargaining power will drastically increase the cost to retail food establishments.  Many restaurants will not be able to absorb this cost and it will inevitably be passed along to consumers.    

If Senate Bill 1290 is enacted, the cost of compliance will be drastic for retail food establishments.  Restaurants would need to send their menu items out for scientific evaluation, reprint much longer menus, train employees to measure exact portions, and completely rebuild menu boards.  Currently, it costs more than $1000 per analysis to be in compliance.  That amount varies depending on the number of nutrients that have to be analyzed.   Many restaurants allow their customers to customize their orders.  For instance, a restaurant that serves pizza may allow their customers to choose from several types of dough, sauce and toppings.  To have each combination analyzed would put any small business out of business.  There are countless restaurants and takeout facilities throughout Massachusetts who simply can not afford to comply with this legislation.  Mom and pop establishments will not be able to compete as they will have less to offer in order to keep up with high overhead costs that include scientific evaluation of menu items and changes to their menu.  Furthermore, the Department of Public Health will have the authority to regulate and charge fees for noncompliance which could be drastic. 

Consumers will also suffer, not only in cost, but in choice as well.  Restaurants will be less likely to add new items to the menu or run specials.  Many restaurants pride themselves on offering fresh seasonal food which is offered as a special.  To keep costs down, businesses may be forced to defer from offering such items.  Many restaurant establishments change their menu daily and offer a variety that is appreciated by their customers.  This type of variety will no longer be feasible for small business owners that are trying to comply with menu labeling regulations.   

The impact of a menu labeling requirement will reach beyond restaurants and takeout facilities.  Massachusetts has a thriving seafood industry that will be suffer from this legislation.  Many seasonal specials offered at retail food establishments include fresh fish.  Depending on the season, restaurants will run lengthy specials in order to provide the best catch to their customers.  S.1290 will deter businesses from offering such specials and therefore reduce the amount of seafood being purchased.

For businesses that do not use printed menus, S.1290 mandates that these establishments display caloric information for each item on the menu board in the same size and typeface similar to other information about the item, so long as additional nutritional information is made available upon request.  By adding caloric information only, menu boards will still need to change drastically whereas there are many combinations of options that would significantly change the calorie count.   Many menu options would need to be eliminated, thus leaving consumers with fewer choices.  Menu board will also become more difficult for customers to read if all options remain and caloric information is added. 

In all likelihood, the people who take advantage of nutritional labeling in restaurants already have the knowledge and are generally healthy eaters.  There is no evidence to support the argument that menu labeling will reduce obesity.  Individuals who are concerned about obesity should take personal responsibility for living a healthier lifestyle by exercising regularly and consider moderation and/or better food choices. 

We urge the Committee to consider the practicality of implementing such measures and the devastating effect it may have on retail food establishments.  RAM believes that S.1290 is an inappropriate vehicle that will greatly compromise restaurants and takeout business in the Commonwealth.  Furthermore, if menu nutrient labeling is ever warranted in the future, it is best addressed by the federal government, so national uniformity would exist, and local employers would not be put at a disadvantage.

Thank you for your time and consideration.  If I can be of any assistance as you consider these bills, please do not hesitate to contact me.