Economic Efficiency and Consumer Choice Theory in Nutritional Labeling

OF THE UNITED STATES: THE NATIONAL DATA BOOK 461 (1997); see also Putnam, supra note 33, at 3. A similar finding was observed by the Institute of Medicine in 1990, when it discovered that Americans expend roughly 43% of their food dollars on meals outside the home. Marlene Cimons, Nutrition Labels for Fresh Foods, Restaurants Urged, L.A. TIMES, Sept. 27, 1990, at A23 (quoting Professor Richard A. Merrill, chairman of the study conducted by the Institute of Medicine). 45. Nestle & Jacobson, supra note 7, at 19. 46. See John Burklow & Amy Aubertin, Fast Food Chains Move Toward Healthier Choices, 83 J. NAT'L CANCER INST. 325, 325 (1991) (noting that "[flast food represents the largest component of eating place sales, with expected sales of $74.1 billion in 1991"); see also Shanthy A. Bowman et al., Effects of Fast-Food Consumption on Energy Intake and Diet Quality Among Children in a National Household Survey, 113 PEDIATRICS 112, 112 (2004) (identifying fast food consumption among children as a factor in the expansion of obesity). But see TODD G. BUCHHOLZ, U.S. CHAMBER OF COMMERCE, BURGERS, FRIES AND LAWYERS: THE BEEF BEHIND OBESITY LAWSUITS 3 (2003) (concluding that there is "little conclusive evidence that [fast food] is a primary cause of obesity"), available at http://66.241.235.56/resources/burgers.pdf. 47. For a thorough account of the popularity of fast food in America, see generally ERIC SCHLOSSER, FAST FOOD NATION (2002). 48. Scott Allen, The Greening of McDonald's: Environmental Houdini Act 1171 2004:1161 WISCONSIN LAW REVIEW consider that Americans now spend $110 billion annually on fast food items,49 compared with $50 billion spent on seafood,50 and $60 billion spent on fruits and vegetables, combined.5' Or, consider that 25% of Americans eat fast food daily,52 and the average American consumes two fast food meals a week.53 None of this should come as a surprise, however, since there are almost 250,000 fast food restaurants in the United States,' or roughly one for every 1,200 Americans. 55 The growth of fast food consumption is also evidenced by the increase in advertising and promotional resources expended by the fast food industry. 6 In fact, it is estimated that the industry spends $33 Transforms Chain from Rogue to Role Model, BOSTON GLOBE, Jan. 24, 2000, at Cl; see also Sahasporn Paeratakul et al., Fast-Food Consumption Among US Adults and Children: Dietary and Nutrient Intake Profile, 103 J. AM. DIETETIc ASS'N 1332, 1332 (noting that fast food sales increased 300% from 1970 to 1980). 49. Joel Iglesias, Applying the Implied Covenant of Good Faith and Fair Dealing to Franchises, 40 Hous. L. REv. 1423, 1430 (2004). 50. FoodMarketExchange.com, Shrimp Consumption: USA, at http://www.foodmarketexchange.com/datacenterproduct/seafood/shrimp/detaildc-pi-sf _shrimp07Ol011.htm (1999) (citing research conducted by the National Fisheries Institute). 51. See Press Release, Glad, Waste Watchers: What We Eat and What We Pitch (Nov. 2001) (citing research conducted by Dr. William Rathje that states "Americans spend $60 billion annually on fresh produce"), available at http://www.glad.com/media_9.html. 52. Davide Dukcevich, Most Influential Businessmen: Ray Kroc, at http://www.forbes.com/2004/O3/15/cx-dd-mibp_0315krocpoll_print.html (Mar. 15, 2004). 53. Pamela Griner Leavy, In a Hurry? Fast Food Can Fit into Your Diet, ST. PETERSBURG TIMES, Feb. 10, 1999, at 4; see also Sharada Shankar & Ann Klassen, Influences on Fruit and Vegetable Procurement and Consumption Among Urban AfricanAmerican Public Housing Residents, and Potential Strategies for Intervention, 13 FAM. ECON. & NUTRITION REV. 34 (2001) (presenting study which found that 55% of AfricanAmerican families consume fast food each week). Anecdotally, consider that the per capita consumption of french fries now surpasses fresh potatoes, and that the average American consumes twice as much cheese as twenty years earlier. Dortch, supra note 40, at 42. Also, consider that "average annual consumption of cheese (excluding fullskim American and cottage, pot, and baker's cheeses) increased 269% between the 1950's and 1998." Putnam, supra note 33, at 7. 54. Bowman et al., supra note 46, at 112 (noting that as of January 2004, there were 247,115 fast food restaurants in the United States). 55. There were 290,809,777 Americans on July 1, 2003. Census Bureau, supra note 27. There are 247,115 fast food restaurants in the United States. Bowman et al., supra note 46, at 112. Thus, for each American, there are 1,177 fast food restaurants. To further illustrate this point, consider that most Americans live within three miles of a McDonald's. Allen, supra note 48, at C1. 56. The enlarged American food supply-which provides a daily average of 3,800 calories for every American, thus significantly exceeding the FDA's suggested intake range of 2,000 to 2,500 calories a day-likely contributes to intense competition among market participants of the fast food industry. See Anthony E. Gallo, The Food Marketing System in 1996, 743 U.S. DEP'T AGRIC. INFO. BULL. 1, 8-9 (1998). 1172 Nutritional Labeling billion annually on advertising, trade shows, supermarket slotting fees, incentives, and other consumer promotions. 7 In striking contrast, the National Cancer Institute outlays only $1 million per year to avail the benefits of fruits and vegetables, 8 while the National Heart, Lung, and Blood Institute's National Cholesterol Education Campaign possesses a seemingly meager budget of $1.5 million. 9 Perhaps most illustrative, "[olnly 2% of all food advertising is devoted to the promotion of fruits, vegetables, grains, or beans."' Fast food's remarkable currency with the American people has generated a number of explanations. For instance, fast food may provide a "self-medication" to those who are depressed, lonely or angry.6 Fast food may also serve as a befitting companion to the burgeoning group of Americans who frequently watch television or surf the Internet.62 Perhaps most practically, fast food offers a large amount of food for a very inexpensive price. Indeed, a recent study found that over 75% of fast food eaters "believe they're getting good value for their money.', 63 Aside from frequenting fast food restaurants more often, Americans are also eating more when they visit, particularly with the advent of "super sizing" and "value meals." In almost every fast food restaurant, a patron can opt for a value meal, which typically includes a hamburger sandwich, a side order of french fries, and a soft drink at a discounted price; in contrast, super sizing simply refers to enlarged versions of a regular dish. Roughly one-half of fast food orders are, in fact, value meals.' Sometimes super sizing and value meals are combined to produce a remarkably hearty meal. For instance, a McDonald's patron can purchase the "super-sized Big Mac value meal," which includes a 57. Nestle & Jacobson, supra note 7, at 18. 58. Id. Moreover, the National Institutes of Health Five-A-Day Program, which promotes fruit and vegetable consumption, possesses a mere $3 million budget. Neal D. Barnard, Big Food's Greasy Secrets, N.J. L.J, Feb. 10, 2003, at 23. 59. See James I. Cleeman & Claude Lenfant, The National Cholesterol Education Program: Progress and Prospects, 280 JAMA 2099, 2102 (1998). 60. See Barnard, supra note 58, at 23. 61. See Joslin Diabetes Center, supra note 7. For an extensive analysis of the link between eating habits and depression, see Linda Jonides et al., Management of Child and Adolescent Obesity: Psychological, Emotional, and Behavioral Assessment, 110 PEDIATRICS 215 (2002). See also Mustillo et al., supra note 10 (providing study on link between youth, depression, and obesity). 62. See Joslin Diabetes Center, supra note 7; see also Patrick M. Garry, The First Amendment in a lime of Media Proliferation: Does Freedom of Speech Entail a Private Right to Censor?, 65 U. PiTT. L. REV. 183, 221 (2004) (noting that Internet terminals have become available in fast food restaurants). 63. Allen, supra note 48, at Cl (citing study by the National Restaurant Association conducted in 2000). 64. Id. 2004:1161 1173 WISCONSIN LAW REVIEW hamburger sandwich, a large order of french fries, and a large soft drink. This meal contains 1430 calories and fifty-eight grams of fat.65 To place these figures in perspective, the FDA, in the interests of reducing the risk of disease and maintaining good health, presently recommends that fat intake not exceed 30% of the total daily consumption of calories,66 and that the average-sized person consume between 2,000 and 2,500 calories and sixty-five grams of fat daily.67 According to several market studies, Americans are uniquely attracted to value meals because they are obsessed with obtaining the largest portion size for their food dollar.68 Moreover, for Americans on limited budgets, obtaining significantly more food in exchange for a minimal increase in price proves especially attractive. 69 This attraction 65. McDonald's Corp., McDonald's USA Nutrition Facts for Popular Menu