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Restaurants skip required nutrition info; officials choose not to care

Only five years ago, California enacted a pioneering law that required restaurants to put nutritional information on menus. For the first time, consumers were empowered to make informed decisions about what they ate.

So it seems crazy that it's even a question: Does the law still exist?

If you ask state Sen. Alex Padilla (D-Pacoima), the author of the menu-labeling law, the answer is yes.

"The law in California is still the law," he told me. "My firm belief is that nutritional information is still required on menus."

But that's not how the California Restaurant Assn. sees it. It believes Padilla's law has been repealed.

So does the California Conference of Directors of Environmental Health, whose members are responsible for enforcing menu labeling at the local level.

"Right now we're in limbo," said Elizabeth Morgan, environmental health director for Sierra County, northeast of Sacramento, and chair of the state organization's Food Safety Policy Committee.

Or, in the words of Angelo Bellomo, environmental health director at the Los Angeles County Department of Public Health: "There is a law that requires it, but both the federal government and the state government have decided not to enforce it."

Confused?

You have a right to be — just as you should be angry that no one has been ensuring that California consumers have the nutritional info they need to make healthful eating choices.

It's an insane and completely unnecessary example of government bureaucracy at its most inept.

And it's only come to light, at least for me, because Phil Loebach, 62, contacted me the other day to relate a recent experience he had at the Applebee's restaurant in Signal Hill.

The Long Beach resident said that every time he's gone to an Applebee's, there have been calorie counts on the menu. But at the Signal Hill branch, he was unable to find out how many calories were in the tomato soup and chicken sandwich he wanted to order.

"I'm trying to eat healthy," Loebach said. "At other Applebee's, calorie counts always help me make decisions. But this one didn't have them."

When he got home, he emailed Applebee's to ask where the calorie count was. Didn't state law require nutritional information on the menus of any restaurant chain with more than 20 branches?

A response was offered by Brad Miller of Apple American Group, which owns and operates about 450 Applebee's restaurants across the country, including the Signal Hill outlet.

"I wish I could provide you with more," he wrote, "but California law has been suspended pending the issuance of FDA regulations."

California's menu-labeling law, which took effect in 2009, requires restaurant chains with 20 or more outlets to provide information on calories, saturated fat, carbohydrates and sodium.

The law was so well-regarded that President Obama decided to make it part of Obamacare. Section 4205 of the Affordable Care Act stipulates that calorie counts must be included on menus of restaurant chains with 20 or more branches and that other nutritional info must be provided on request.

Now here's where things start getting squirrelly.

Padilla decided that the state needed to get in step with Obamacare. So he wrote a new law in 2010 that repealed his first law and required the state to follow the labeling provisions of the Affordable Care Act.

"We wanted to be consistent with national requirements," he told me.

But Padilla's new law stated that it would take effect "only on and after the compliance date" for federal regulations — that is, once federal rules hit the books.

Unfortunately, the feds have dithered in setting a date by which restaurants must comply with the federal law. A spokeswoman for the Food and Drug Administration, which is charged with coming up with Obamacare's labeling regulations, said the agency is still putting the final touches on its rules.

The FDA announced in 2011 that even though some parts of Obamacare's labeling requirements, such as menu calorie counts, were mandated right away, the agency "does not intend to enforce" those provisions "until the final rule is published and in effect."

That's why Padilla said his original labeling law is still the law of the land. Until there's a federal law that California restaurants have to follow, he said, nothing's changed with the state's requirements.

If that's true, restaurant chains like Applebee's apparently are in violation of state law if they don't include nutritional information on their menus.

Applebee's, however, doesn't think so. Dan Smith, a spokesman for the company, said that "our position is that the state's menu requirements have been suspended pending the federal requirements."

As such, he said, Applebee's franchisees are free to do as they please, which explains why Loebach found calorie counts at one location but not another.

Angie Pappas, a spokeswoman for the California Restaurant Assn., said the industry group believes Padilla's second labeling law repealed the first one.

A spokesman for the California Department of Public Health said the same thing.

Bellomo, the L.A. County director of environmental health, said menu calorie counts technically were required as soon as Obamacare was signed into law in 2010. But because other regulations awaited FDA approval, he said, federal, state and local officials decided not to enforce the nutritional information rule.

"Whatever's on the books is on hold pending the federal rules," he said. "We've been very frustrated."

It would seem that all roads lead to the state attorney general's office to be the arbiter for what's what as far as menu labeling in California is concerned.

But a spokesman for Atty. Gen. Kamala Harris said no one in the office wanted to hazard a guess about whether Padilla's original law remained in effect pending the FDA finally getting its act together.

So call this the case of the missing law. We seem to have one. But no one's enforcing it. So we might as well not have one.

That's nuts. If there's any confusion about whether a consumer-protection law is still valid, public officials should err on the side of public interest until told otherwise.

That's not what's happened here.

And that's a cold dish indeed.

David Lazarus' column runs Tuesdays and Fridays. He also can be seen daily on KTLA-TV Channel 5 and followed on Twitter @Davidlaz. Send your tips or feedback to david.lazarus@latimes.com.

Copyright © 2014, The Baltimore Sun
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