California was the first state, in 2009, to enact a menu nutrition labeling law but may not necessarily be the first state to implement one.

Then again, maybe California's law doesn't really exist at all. It depends on who you talk to.

David Lazarus at the Los Angeles Times talked to the legislation's author, state Senator Alex Padilla (D-Pacoima), and was told that the controversial bill, vigorously opposed by the restaurant industry, is, indeed, the law in California.

The California Restaurant Association (CRA) and the California Conference of Directors of Environmental Health said Senator Padilla was mistaken. That might account for why you don't necessarily see nutritional information on menus in restaurant chains with at least 20 locations, as the law required. Or requires.

The bone of contention is apparently a conflict with federal law. But sort of, in a complimentary way.

Federal admirers of the California law adopted its framework in the Affordable Care Act, otherwise known as Obamacare, as part of its overhaul of the nation's health system. Padilla responded by sponsoring a new state law in 2010 that brought his original legislation in line with the federal law.

A key condition of the restaurant industry, at the state and federal level, has been pre-emption. Lobbyists insisted (pdf) that California lawmakers not let more aggressive local governments preempt the state, and the federal law requires the same obedience from the states. 

Padilla's new law would take effect when that portion of the federal law kicks in. That hasn't happened because the feds never set a compliance date. The senator assumes that means his original law is the law. Others think there is no law or, as in the case of the U.S. Food and Drug Administration (FDA), Obamacare presently mandates only part of the nutrition menu law but isn't enforcing any of it. Yet.

The restaurant association argues that the second Padilla law repealed the first and the California Department of Public Health (CDPH) told Lazarus they agreed.

That's also what the Sacramento County Environmental Health Department was saying in 2011. “We had the state law that was still in effect, but the federal law pre-empted the state law,” the department's John Rogers told ABC San Francisco.

Some restaurants have marched ahead and posted information on calories, saturated fat, carbohydrates and sodium, while others have posted some of the information. It varies even within chains.

Everyone is waiting on the feds and the feds are still pondering the details while the restaurant industry continues to lobby.

“There are very, very strong opinions and powerful voices both on the consumer and public health side and on the industry side, and we have worked very hard to sort of figure out what really makes sense and also what is implementable,” FDA Commissioner Margaret Hamburg told the Associated Press in March 2013.

She said the FDA was in the final stages of writing the menu labeling regulations and hoped to have them done by Spring—last Spring. But, AP reporter Mary Clare Jalonick pointed out, “That deadline may be optimistic as the food industry and regulators continue to haggle over how they will be written.”

That haggling continued on April 1 when the FDA forwarded its final proposed rules to the White House Office of Management and Budget, triggering a 90-day review process. All comments are welcome.

–Ken Broder

To Learn More:

Restaurants Skip Required Nutrition Info; Officials Choose Not to Care (by David Lazarus, Los Angeles Times)

Federal Law Negates California Calorie Labeling Law (by Michael Finney, ABC San Francisco)

Menu Labeling Law: Calorie Counts Are a “Thorny” Issue, FDA Head Says (by Mary Clare Jalonick, Associated Press)

Menu Labeling (California Restaurants Association) (pdf)