Brain food: Bringing psychological insights to bear on modern nutrition labeling efforts

Food and Drug Law Journal

Volumn 65, Issue 1, 2010, Pages

  Szanyi, Jason M ^a  

^a Center for Law and Social Policy   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ATTENTION; CALORIE; CATERING SERVICE; CONSUMER; DECISION MAKING; FOOD INDUSTRY; FOOD PACKAGING; HEALTH CARE POLICY; HEALTH SERVICE; HUMAN; NUTRITIONAL ASSESSMENT; PSYCHOLOGICAL ASPECT; REVIEW; UNITED STATES;

DIET; ENERGY INTAKE; FOOD; FOOD LABELING; FOOD PREFERENCES; GREAT BRITAIN; HUMANS; NEW YORK CITY; NUTRITIVE VALUE; UNITED STATES;

EID: 77949579785     PISSN: 1064590X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (177)

1. 21 U.S.C. §§ 1-15 (1934) (repealed in 1938 by 21 U.S.C. § 329(a)).
2. See, e.g., French, Simone A. et al., Environmental Influences on Eating and Physical Activity, 22 ANN. REV. PUB. HEALTH 309 (2001).
3. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES & CENTERS FOR DISEASE CONTROL AND PREVENTION, NATIONAL CENTER FOR HEALTH STATISTICS, HEALTHY PEOPLE 2000 FINAL REVIEW 76 (2001) [hereinafter HEALTHY PEOPLE 2000].
4. French, supra note 2, at 317.
5. For an interesting, up-to-date account of efforts by the government and the private sector to increase the effectiveness of nutritional labeling for consumers, visit 1862-2009: A Brief History of Food and Nutrition Labeling, http://www.fooducate.com/blog/2008/10/25/1862-2008-a-brief-history-of-food-and- nutrition-labeling (last visited Feb. 2, 2009).
6. See infra notes 39-41 and accompanying text (discussing calls for the study of these processes).
7. See, e.g., Ho, Chadwick A.. A Psychological Model of Food and Drug Law (1997), in Peter Barton Hutt. ed., FOOD AND DRUG LAW: AN ELECTRONIC BOOK OF STUDENT PAPERS.
8. See Kristal, Alan R. et al., Trends in Food Label Use Associated with New Nutrition Labeling Regulations, 88 AM. J. PUB. HEALTH 1212 (1998) (reporting increased use of and satisfaction with nutritional labeling after the introduction of regulations following the passage of the Nutrition Labeling and Education Act of 1990, but finding that 70 percent of adults still wanted nutrition labels to be easier to understand).
9. See supra note 1.
10. COMMITTEE ON THE USE OF DIETARY REFERENCE INTAKES IN NUTRITION LABELING, FOOD AND NUTRITION BOARD, INSTITUTE OF MEDICINE, DIETARY REFERENCE INTAKES: GUIDING PRINCIPLES FOR NUTRITION LABELING AND FORTIFICATION 21 (2003).
11. Id.
12. NLEA, Pub. L. No. 101-535, 104 Stat. 2353. § 6 (codified as 21 U.S.C. § 343-1 (2008)).
13. 21 U.S.C. §§ 301-392 (2008).
14. H.R. 3028, 101st Cong. (1989).
15. In FDA, the Center for Food Safety and Applied Nutrition's (CFSAN's) Office of Nutritional Products, Labeling, and Dietary Supplements (ONPLDS) is responsible for food labeling. See ONPLDS Homepage, http://www.cfsan.fda. gov/~dms/onplds.html (last visited Mar. 2, 2009).
16. See HEALTHY PEOPLE 2000, supra note 3.
17. NLEA, supra note 12.
18. See id. When originally passed, the law deemed a food to be misbranded if its label did not contain both the number of calories per serving and the number of calories derived from total fat and saturated fat. The current law requires food labels to bear the total calories, as well as those derived from total fat.
19. See 21 U.S.C. § 343(q)(1)(c)(i)-(ii) (2008).
20. See 21 U.S.C. § 343(q)(5)(a)(i) (2008).
21. See 21 C.F.R. § 101.10 (2008).
22. See id.
23. See, e.g., Conklin, Martha T, Nutrition Information at Point of Selection Could Benefit College Students, 20 TOPICS IN CLINICAL NUTRITION 90 (2005) (females more likely than males to use nutrition information when making food choices);
24. Rayner, Michael, Boaz, Annette, & Higginson, Cathy, Consumer Use of Health-Related Endorsements on Food Labels in the United Kingdom and Australia, 33 J. NUTRITION EDUC. 24 (2001) (reporting variations in use of health-related endorsements, but generally finding that endorsements were rarely used);
25. see also Rimal, Arbindra, Moon, Wanki, & Balasubramanian, Siva, Labelling Genetically Modified Food Products: Consumers' Concern in the United Kingdom, 31 INT'L J. CONSUMER STUDS. 436 (2007) (finding that only significant perceived benefit of genetically modified food labeling was improved nutritional value in online survey of over 2,500 consumers in the United Kingdom).
26. See HEALTHY PEOPLE 2000, supra note 3.
27. ALAN S. LEVY & BRENDA M. DERBY, CENTER FOR FOOD SAFETY AND APPLIED NUTRITION, FOOD AND DRUG ADMINISTRATION, THE IMPACT OF NLEA ON CONSUMERS: RECENT FINDINGS FROM FDA'S FOOD LABEL AND NUTRITION TRACKING (1996).
28. INTERNATIONAL FOOD INFORMATION COUNCIL FOUNDATION, FOOD & HEALTH SURVEY: CONSUMER ATTITUDES TOWARD FOOD, NUTRITION AND HEALTH (2007).
29. See, e.g., Kim, Sung-Yong, Nayga, Rodolfo M., Jr., & Capps, Oral, Jr., Food Label Use. Self-Selectivity, and Diet Quality, 35 J. CONSUMER AFFAIRS 346 (2001) (food label use has measurable impact on quality of individual diet, based on increases in Healthy Eating Index scores).
30. Kreuter, Matthew W. et al., Do Nutrition Label Readers Eat Healthier Diets? Behavioral Correlates of Adults' Use of Food Labels?, 13 AM. J. PREVENTIVE MED. 277 (1997).
31. Kessler, Hermine & Wunderlich, Shahla M., Relationship Between Use of Food Labels and Nutrition Knowledge of People With Diabetes, 25 DIABETES EDUC. 549 (1999).
32. See, e.g., Yamamoto, Julienne A., Adolescent Fast Food and Restaurant Ordering Behavior With and Without Calorie and Fat Content Menu Information, 37 J. ADOLESCENT HEALTH 379 (2005) (provision of nutritional information with restaurant menus resulted in approximately one third of teens changing food choice).
33. Kozup, John C. et al., Making Healthful Food Choices: The Influence of Health Claims and Nutrition Information on Consumers' Evaluations of Packaged Food Products and Restaurant Menu Items, 67 J. MARKETING 19, 31 (2003).
34. Burton, Scot & Creyer. Elizabeth H., What Consumers Don't Know Can Hurt Them: Consumer Evaluations and Disease Risk Perceptions of Restaurant Menu Items, 38 J. CONSUMER AFFAIRS 121 (2004).
35. Id.
36. See, e.g., supra notes 26 and 30-31 and infra note 34.
37. Nayga, Rodolfo M., Jr., Impact of Sociodemographic Factors on Perceived Importance of Nutrition in Food Shopping, 31 J. CONSUMER AFFAIRS 1, 8 (1997).
38. One former Food and Drug Law student, in an original empirical examination of the public perception of serving size labeling in four different populations, hypothesized about the relationship between his descriptive data and the potential reasoning and decisionmaking processes in which his participants may have engaged. See Appel, Jacob M., Portion Distortion and Public Perception: How Serving Size Guidelines are Over-Serving and Under-Serving the Consumer 34-35 (2002), in Peter Barton Hutt, ed., FOOD AND DRUG LAW: AN ELECTRONIC BOOK OF STUDENT PAPERS (hypothesizing that individuals may "guestimate" the number of servings per package, instead of using the serving size labeled on the item). By attempting to explain the reasoning processes behind his data, the author went further than many other studies of nutritional labeling. Nevertheless, the paper did not contain the type of empirical assessment that would be most useful in determining how individuals ultimately arrived at their decisions.
39. One notable exception to this trend is a study examining how individuals perform visual searches of nutrition labels. See Goldberg, Joseph H. et al., Visual Search of Food Nutrition Labels, 41 HUM. FACTORS 425 (1999). In that study, the authors tracked individual participants' eye movements while manipulating features of a standard nutritional label. The study was significant in that it found that the current nutrition label "supported accurate and rapid search for desired information." The study focused purely on perception, however, and not on how consumers processed that information.
40. Nayaga, supra note 34, at 8.
41. The study's author readily conceded that "certain questions remain[ed] unanswered ... [including] why white and employed male meal planners perceive[d] nutrition as less important in food shopping than their counterparts," and he suggested that "future work that might shed some light on this issue is the examination of the link between perception and nutrition." See id. (emphasis added). This exactly the type of work that this paper argues is necessary to fully understand the effectiveness of nutritional labeling.
42. KEYSTONE CENTER, THE KEYSTONE FORUM ON AWAY-FROM-HOME FOODS: OPPORTUNITIES FOR PREVENTING WEIGHT GAIN AND OBESITY - FINAL REPORT 68-71 (2006).
43. Id. at 68 (emphasis added);
44. see also id. (noting that "published research is not available on how and where nutrition information should be provided to best help people lower their calorie intake in away-from-home food establishments").
45. See 71 Fed. Reg. 6076 (Feb. 6, 2006).
46. Kessler & Wunderlich, supra note 28.
47. See Nagaya, supra note 34, at 2.
48. See FDA, FDA Mission Statement, http://www.fda.gov/opacom/ morechoices/mission.html (last visited Feb. 9, 2009).
49. See HEALTHY PEOPLE 2000, supra note 3.
50. See supra notes 39-41.
51. For a general review of the field of attention research, see ELIZABETH A. STYLES, THE PSYCHOLOGY OF ATTENTION (2d ed. 2006).
52. Recent commentary captures some of the major ongoing debates in attention research. See, e.g., Driver, Jon, A Selective Review of Selective Attention Research from the Past Century, 92 BRITISH J. PSYCHOL. 53 (2001).
53. See WILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY (1890).
54. Change blindness studies illustrate the limitations on human attention "by demonstrating that substantial changes in a visual scene can go undetected." Caplovitz, Gideon P. et al., Failures to See: Attentive Blank Stares Revealed by Change Blindness, 17 CONSCIOUSNESS & COGNITION 877, 877 (2008).
55. For sample videos that dramatically illustrate the limits on human attention through interactive visual demonstrations of change blindness, see the University of Illinois Visual Cognition Lab homepage, http://viscog.beckman.uiuc.edu/djs-lab/demos.html (last visited Jan. 21, 2009).
56. See, e.g., Driver, supra note 48.
57. Many of these models are extraordinarily intricate, using computational principles and computer modeling to attempt to replicate findings from major studies. See, e.g., Raffone, Antonino, Synthetic Computational Models of Selective Attention, 19 NEURAL NETWORKS (SPECIAL ISSUE) 1458 (2006).
58. See Lavie, Nillie et al., Load Theory of Selective Attention and Cognitive Control, 133 J. EXPERIMENTAL PSYCHOL.: GEN. 339 (2004).
59. Id. at 351-52.
60. See id.
61. Id. at 352.
62. See generally ALAN D. BADDELEY, HUMAN MEMORY: THEORY AND PRACTICE (4th ed. 2002).
63. RICHARD E. NISBFTT & LEE D. ROSS, HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 6-7 (1990).
64. For a more extended discussion of the psychological concepts of schemas and scripts and the contemporary research related to them, see Brewer, William F., Bartlett's Concept of the Schema und Its Impact on Theories of Knowledge Representation in Contemporary Cognitive Psychology, in CULTURE AND COGNITION (Akiko Saito ed. 2000).
65. Singer, Murray, Discourse Inference Processes, in HANDBOOK OF PSYCHOLINGUISTICS 479-485 (Morton Ann Gernsbacher ed. 1994).
66. FREDERIC C. BARTLETT, REMEMBERING: A STUDY IN EXPERIMENTAL AND SOCIAL PSYCHOLOGY (1934). Bartlett was a British psychologist who did pioneering memory research in the first half of the 20th century. He is often credited with the incorporation of the concept of schemas in cognitive psychology research. However, the concept of the schema can be traced back to Immanuel Kant, who introduced the term "schema" and "schemata." See IMMANUEL KANT, CRITIQUE OF JUDGMENT 59 (1968).
67. See Brewer, supra note 59, for a review of this work.
68. See, e.g., Brewer, William F. & Treyens, James C., Role of Schemata in Memory for Places, 13 COGNITIVE PSYCHOL. 207 (1981);
69. see also Bower, Gordon H. et al., Scripts in Memory for Text, 11 COGNITIVE PSYCHOL. 177 (1979).
70. The terminology related to schemas and scripts is often confused in psychological studies because of the conceptualization of schemas as a subset of scripts. For example, the studies mentioned in note 63 focused on schemas, but the studies used different terms to describe the research.
71. For this reason, some psychologists believe that scripts are a more fruitful area for empirical work. See, e.g., Bower, supra note 63 (noting that schemas carry definite descriptive value, but do little to explain how exactly they facilitate comprehension).
72. Serewicz, Mary Claire Morr & Gale, Elaine, First-date Scripts: Gender Roles, Context, and Relationship, 58 SEX ROLES 149 (2008).
73. See, e.g., Walker, Carol H. & Yekovich, Frank R., Activation and Use of Script-Based Antecedents in Anaphoric Reference, 26 J. MEMORY & LANGUAGE 673 (1987).
74. Dewhurst, Stephen A. et al., Beyond the Text: Illusions of Recollection Caused by Script-based Inferences, 20 EUR. J. COGNITIVE PSYCHOL. 367 (2008).
75. For example, some legal scholars have begun to apply the concepts of schemas and scripts to explain the evolution of certain aspects of legal doctrine, such as tort law. See, e.g., Chen, Ron C. & Hanson, Jon D., Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory, 77 S. CAL. L. REV. 1103 (2004) (discussing how legal scholars have applied insights from psychology, including the concept of schemas).
76. See, e.g., Blake, Christine E. et al., How Adults Construct Evening Meals: Scripts for Food Choice, 51 APPETITE 654 (2008) (identifying eight different kinds of scripts in a qualitative investigation of evening meals, which authors claimed would "provide[] insight into links between cognitions and behaviors that may influence dietary intake"). This study, although qualitative in its design, could be a guide for future empirical research on the same topic.
77. For a recent review of this research, see BLACKWELL HANDBOOK OF JUDGMENT AND DECISION MAKING (Derek J. Koehler & Nigel Harvey eds., 2004) [hereinafter JUDGMENT AND DECISION MAKING].
78. Empley, Nicholas, A Tale of Tuned Decks? Anchoring as Accessibility and Anchoring as Adjustment, in JUDGMENT AND DECISION MAKING, supra note 71, at 241.
79. Kahneman, Daniel and Tversky, Amos are the psychologists who are frequently credited with pioneering this research. See, e.g., Tversky, Amos & Kahneman, Daniel, Judgment Under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124 (1974).
80. See Strack, Fritz & Mussweiler, Thomas, Explaining the Enigmatic Anchoring Effect: Mechanisms of Selective Accessibilitv, 73 J. PERSONALITY. & SOC. PSYCHOL. 437 (1997).
81. Id. at 446.
82. Id.
83. See Empley, supra note 72, at 241.
84. See. e.g., Baron, Jonathan & Spranca. Mark, Protected Values. 70 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 1 (1997).
85. Some researchers use the terminology "sacred values" when investigating this general class of behaviors, although they generally refer to the same phenomena. See. e.g., Tetlock, Phillip E. et al., The Psychology of the Unthinkable: Taboo Trade-offs, Forbidden Base Rates, and Heretical Counterfactuals, 78 J. PERSONALITY & SOC. PSYCHOL. 853 (2000).
86. See Baron & Spranca, supra note 77, at 15.
87. See id.
88. But see Tanner. Carmen & Medin, Douglas L., Protected Values: No Omission Bias and No Framing Effects, 11 PSYCHONOMIC BULL. & REV. 185 (2004).
89. See, e.g., Englich, Birte & Mussweiler, Thomas, Sentencing Under Uncertainty: Anchoring Effects in the Courtroom, 31 J. APPLIED SOC. PSYCHOL. 1535 (2001) (demonstrating influence of demanded sentences on criminal trial judges' sentencing decisions, even when judges disclaimed influence of demanded sentences);
90. see generally PSYCHOLOGY OF DECISION MAKING IN LEGAL, HEALTH CARE AND SCIENCE SETTINGS (Gloria R. Burthold ed., 2007).
91. See, e.g., Connolly, Terry & Reb, Jochen, Omission Bias in Vaccination Decisions: Where's the "Omission"? Where's the "Bias"?, 91 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 186 (2003) (demonstrating that participants demanded a "risk premium" - or a significantly lower risk of side effects from a vaccine than the general risk of contracting the disease - in certain situations, but concluding that finding was dependent on specific methodology and framing of questions to participants).
92. See Centers for Disease Control and Prevention (CDC), Obesity and Overweight: Trends, http://www.cdc.gov/nccdphp/dnpa/obesity/trend (last visited Feb. 19, 2009) (noting obesity rates of approximately 34 percent for adults aged 20 and over).
93. See Severson, Kim, New York Gets Ready to Count Calories, NY TIMES, (Dec. 13, 2006), at F5 [hereinafter Ready to Count Calories].
94. Savage, L.C. & Johnson, Rachel K., Labeling in Restaurants: Will It Make a Difference?, 31 NUTRITION BULL. 332 (2006).
95. For a discussion of the relative merits of such efforts, see Hechler, Miriam P., Nutrition Labeling and Restaurants: Issues, Options and the FDA, 1970-1995 (1994), in Peter Barton Hutt, ed., FOOD AND DRUG LAW: AN ELECTRONIC BOOK OF STUDENT PAPERS.
96. See Press Release, New York City Department of Public Health and Mental Hygiene, Health Department Proposes Two Changes to City's Health Code for Public Comment: First, to Phase Out Artificial Trans Fat in All Restaurants; Second, to Require Calorie Labeling in Some Restaurants (Sept. 26, 2006) (on file with author). The Department also announced its proposal for a ban on the use of artificial trans fat in restaurants at the same time.
97. Press Release, New York City Department of Public Health and Mental Hygiene. Notice of Adoption of an Amendment (§ 81.50) to Article 81 of the New York City Health Code (Dec. 5, 2006) (on file with author).
98. See New York State Restaurant Ass'n v. New York City Bd. of Health, 509 F. Supp. 2d 351 (S.D.N.Y (2007)) (holding that the NLEA expressly preempted the original health code provision as written, but recognizing the Board of Health's authority to require posting of calorie information).
99. The federal judge who held that the original regulation was preempted by federal law ruled that the revised regulation is not preempted. See New York State Restaurant Ass'n v. New York City Bd. of Health, 2008 WL 1752455 (S.D.N. Y. (Apr. 16, 2008)). The Second Circuit Court of Appeals has upheld the lower court's ruling.
100. See New York State Restaurant Ass'n v. New York City Bd. of Health, 556 F.3d 114 (2d Cir. 2009).
101. NEW YORK CITY DEPARTMENT OF PUBLIC HEALTH AND MENTAL HYGIENE, HOW TO COMPLY: WHAT YOUR ESTABLISHMENT NEEDS TO KNOW ABOUT POSTING CALORIES ON MENUS AND MENU BOARDS 5 (2008).
102. Press Release, New York City Department of Public Health and Mental Hygiene, Board of Health Votes to Require Chain Restaurants to Display Calorie Information in New York City (Jan. 22, 2008) (on file with author).
103. See N.Y. CITY HEALTH CODE § 81.50 (2008).
104. See Press Release, New York City Department of Public Health and Mental Hygiene, Notice of Adoption of a Resolution to Repeal and Reenact § 81,50 of the New York City Health Code 2-3 (Jan. 22. 2008) (on file with author) (noting that obesity rates had increased by 70 percent and diabetes rates had doubled in the past decade) [hereinafter Notice to Repeal and Reenact].
105. Id. at 6.
106. Id. at 5.
107. Id. at 6 (noting that a 32 percent price increase when going from a small to large Starbucks specialty drink was associated with a 76 percent increase in calories).
108. See Notice to Repeal and Reenact, supra note 94, at 7.
109. Severson, Kim, Calories Do Count, NY TIMES, (Oct. 28, 2008), at D1 [hereinafter Calories Do Count].
110. See id. Yum Brands, the owner of KFC, Taco Bell, Pizza Hut, Long John Silver's and other fast food establishments has pledged to complete voluntary calorie posting by 2011.
111. See Press Release, Yum! Brands, Inc., Yum! Brands Announced U.S. Divisions Will Place Calories on All Company Restaurant Menu Boards (Oct. 1, 2008) (on file with author).
112. See Calories Do Count, supra note 99.
113. Bassett, Mary T. et al., Research and Practice Purchasing Behavior and Calorie Information at Fast-Food Chains in New York City. 2007. 98 AM. J. PUB. HEALTH 1457 (2008).
114. See Rabin, Roni Caryn, How Posted Calories Affect Food Orders, NY TIMES (NOV. 3, 2009), at D7 (discussing conflicting data). To view the full peer-reviewed study from the journal Health Affairs,
115. see Ebel, Brian et al., Calorie Labeling and Food Choices: A First Look at the Effects on Low-income People in New York City, 28 HEALTH AFFAIRS w1110 (2009).
116. See Part I.C for a discussion of what such an investigation would entail - and why it is important.
117. For example, one of the major articles from the New York Times that covered the law's implementation lead with the reactions of Broadway dancers to the calorie count information. See Calories Do Count, supra note 99. The physical demands of that profession would suggest that those individuals would be particularly sensitive to nutritional information.
118. Because this article's aim is to clearly illustrate how psychological insights can be applied to provide a fuller understanding of how individuals use nutritional information, the subsequent sections select anecdotes that help illustrate the operation of a single psychological principle. Of course, these insights are equally applicable to all consumer behavior and should be considered together when designing effective interventions, which is the focus of Part IV of this article.
119. Notice to Repeal and Reenact, supra note 94, at 8 (quoting a recent FDA Obesity Working Group report).
120. See, e.g., KEYSTONE CENTER, supra note 39, at 68 (indicating that one leading recommendation of an expert group convened and supported by FDA included the posting of calorie information for standardized items on menus in food establishments).
121. See 21 C.F.R. § 101.9(d)(5) (2008).
122. See 21 C.F.R. § 101.9(d)(9) (2008).
123. See Bassett et al., supra note 102.
124. Calories Do Count, supra note 99.
125. Id.
126. Id.
127. See supra notes 47-56 and accompanying text.
128. See NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, CALORIE EDUCATION CAMPAIGN POSTERS, http://www.nyc.gov/html/ doh/downloads/pdf/calories/Calorie-Posters.pdf (last visited Mar. 2, 2009).
129. A former Food and Drug Law student noted similar concerns with respect to the increased focus on trans fat in food labeling: [I]t's valid to question whether the consumer is much better off if she chooses products based solely on their trans fat content. If her health goal for choosing food products is the prevention of heart disease alone, then focusing on fats (and trans fat in particular) would be a good strategy. But the American public has more to think about than just disease prevention. Strategies for overall health also involve things like following the food pyramid recommendations, eating adequate amounts of fruits and vegetables, and managing weight by controlling caloric intake. A singular focus on trans fat arguably takes away from these overarching goals. Anderson, Stacy R., Regulation of Fat Content in Food: Recent History and Cultural Commentary (2006), in Peter Barton Hutt, ed., FOOD AND DRUG LAW: AN ELECTRONIC BOOK OF STUDENT PAPERS.
130. Calories Do Count, supra note 99 (noting that public health officials recognize that calories are only one part of a balanced nutritional regime, but characterizing the effort as "a kind of Hail Mary pass for health officials trying to slow rates of diabetes and obesity").
131. Ready to Count Calories, supra note 84 (quoting Dr. Lynn Silver, Assistant Commissioner of the New York City Board of Health).
132. Barron, James, At Fast-Food Outlets: Premature Sticker Shock for the Weight Conscious, NY TIMES, (Apr. 22, 2008), at B3.
133. Ready to Count Calories, supra note 84.
134. See U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS) AND U.S. DEPARTMENT OF AGRICULTURE (USDA), DIETARY GUIDELINES FOR AMERICANS (6th ed. 2005). For a discussion of the 2005 Dietary Guidelines' treatment of calories,
135. see Black. Julie, There's a Government in My Soup: The 2005 Dietary Guidelines for Americans 41-47 (2005), in Peter Barton Hutt, ed., FOOD AND DRUG LAW: AN ELECTRONIC BOOK OF STUDENT PAPERS.
136. See, e.g., Krukowski, Rebecca A. et al., Consumers May Not Use or Understand Calorie Labeling in Restaurants, 106 J. AM. DIETETIC ASS'N 917 (2006) (finding that 27-36 percent of study participants could not accurately estimate daily calorie needs).
137. McDonald's USA, McDonald's Nutrition Facts, http://nutrition.mcdonalds. com/nutritionexchange/nutrition-facts.html (last visited Jan. 18, 2009).
138. See Rabin, Roni Caryn, Calorie Labels May Clarify Options, Not Actions, NY TIMES, (July 17, 2007), at F6 (noting that experts believe that diners may order items that they associate with health food without regard to actual calorie content).
139. See supra notes 72-76 and accompanying text.
140. One study of nutrition labeling found some evidence this effect. See Kozup et al., supra note 30, at 31 (finding that evaluation of the nutritional information for a target item varied as a function of the nutritional information provided for other non-target items).
141. Nerouilias, Nicole, Menu Listing Calories May Come to County, NY TIMES, (Oct. 10, 2008). at WE6. The New York State Restaurant Association is the party that filed suit to block the implementation of the New York City calorie posting provision.
142. See supra notes 77-80 and accompanying text. The concept of protected values is most often discussed in the context of morally motivated decisionmaking (i.e., decisionmaking that involves options that have a strong ethical component, such as choosing to ban abortion or funding stem cell research). To be sure, the calorie counting provision does not have a strong ethical dimension in this same sense. Nevertheless, the construct is still useful for understanding how individuals may be altering their decisionmaking habits through the development of certain categorical rules.
143. See, e.g., Barron, supra note 120 (noting the range of reactions of different types of customers to the calorie counts).
144. See supra note 99 and accompanying text.
145. FSA, About Us, http://www.food.gov.uk/aboutus/ (last visited Feb. 21. 2009). In the UK, the regulation of drugs and devices is the province of an executive agency of the government's Health Department, known as the Medicines and Healthcare Products Regulatory Agency. See Medicines and Healthcare Products Regulatory Agency, About Us, http://www.mhra.gov.uk/Aboutus (last visited Feb. 22, 2009).
146. See FSA, RESEARCH DESIGN: COMPREHENSION AND USE OF U.K. NUTRITION SIGNPOST LABELLING SCHEMES 1 (2007).
147. GERARD HASTINGS ET AL., REVIEW OF RESEARCH ON THE EFFECTS OF FOOD PROMOTION TO CHILDREN (2003).
148. See Members of European Parliament Discuss Food Labeling and Heart Health, E! SCIENCE NEWS (June 5, 2008), http://esciencenews.com/articles/2008/06/05/members.european.parliament.discuss. food.labeling.and.heart.health (last visited Jan. 17, 2008) (quoting Susanne Logstrup, Director of the European Heart Network, as supporting "simplified front of pack labelling of four key nutrients, energy, saturated/trans fats, sugars and salt ... [and] mandatory back of pack labelling of the 'big eight' (energy, protein, carbohydrate, sugars, fibre, fat, saturated fat, trans fat and salt");
149. see also Beard, Trevor C. et al., Traffic-light Food Labels, 186 MED. J. AUSTRALIA 19 (2007) (noting the potential application of the UK's traffic light system to combat obesity in Australia).
150. FSA, Supporters of FSA's Approach to Signpost Labelling, http://www.food.gov.uk/foodlabelling/signposting/supportfsasignp (last visited Mar. 2, 2009).
151. For a comprehensive account of the FSA's research into signposting alternatives, visit http://www.food.gov.uk/foodlabelling/signposting (last visited Mar. 2, 2009).
152. See FSA, Traffic Light Labelling, http://www.eatwell.gov.uk/ foodlabels/trafficlights/ (last visited Mar. 2, 2009) [hereinafter Traffic Light Label Site].
153. The FSA provides technical guidance as to the threshold level for each nutrient. FSA, FRONT-OF-PACK TRAFFIC LIGHT SIGNPOST LABELLING TECHNICAL GUIDANCE 6-7 (2007) [hereinafter TRAFFIC LIGHT GUIDANCE] (setting standardized portion sizes as 100 grams for foods and 100 milliliters for beverages).
154. Id.
155. See Traffic Light Label Site, supra note 138.
156. FSA, Traffic Light Label Adopters, http://www.food.gov.uk/multimedia/ pdfs/tladopters16jan09.pdf (last visited Mar. 10, 2009).
157. For an example of the FSA's education outreach via television, visit http://www.flyonthewall.com/FlyBroadcast/FSA/TrafficLights/ (last visited Mar. 10, 2009).
158. TRAFFIC LIGHT GUIDANCE, supra note 139, at 4. The list of recommended foods includes sandwiches, wraps, filled baguettes, hot and cold prepared or ready meals, sausages, pies, pasties, quiches, pizzas, breakfast cereals and "breaded or coated formed meat, meat alternative, poultry, fish and similar products,"
159. Id.
160. Lakhani, Nina, Behind the Labels: Easy-to-use Traffic Light System Needed, Say Experts, INDEPENDENT, (Aug. 31, 2008).
161. See Label Wars: GDA vs Traffic Lights, BBC NEWS, http://news.bbc.co.Uk/2/hi/uk-news/6231137.stm (last visited Mar. 2, 2009) (quoting one individual who characterized the traffic light system as "at best patronising and at worst misleading").
162. See supra notes 86, 99, and 146 for materials capturing certain aspects of that debate.
163. See Traffic Light Label Site, supra note 138.
164. See supra notes 53-56 and accompanying text.
165. See supra note 144.
166. Kunkel, Dale & McKindley, Christopher, Developing Ratings for Food Products: Lessons Learned from Media Rating Systems, 39 J. NUTRITION EDUC. & BEHAVIOR S27, S28 (2007) (noting similar criticisms with respect to television's V-chip program ratings).
167. Id. at S28. The National Institutes of Health (NIH) recently engaged in a health information campaign targeted at children that uses a three-category framework to designate foods based on their nutritional content. The system identifies foods that can be consumed regularly, those that should be consumed occasionally, and those that should be eaten sparingly.
168. See NATIONAL HEART LUNG AND BLOOD INSTITUTE, NIH, WE CAN! (WAYS TO ENHANCE CHILDREN ACTIVITY AND NUTRITION) MATERIALS - FAMILIES FINDING THE BALANCE: A PARENT HANDBOOK - ENGLISH 13-16 (2005).
169. Krukowski et al., supra note 123, at 917 (reporting that 64 to 73%) of study participants had an accurate sense of their daily calorie needs).
170. Id. But see Wootan, Margo G, Needfor and Effectiveness of Menu Labeling, 107 J. AM. DIETETIC ASS'N 33 (2007) (identifying methodological shortcomings in the Krukowski study).
171. See Krukowski et al., supra note 123, at 917.
172. See, e.g., supra note 146.
173. Extensive details related to the Panel's work are available at the FSA website. See FSA, Independent Evaluation Project, http://www.food.gov.uk/ foodlabelling/signposting/signpostevaluation/pmpanel/evaluation/ (last visited Mar. 9, 2009).
174. See BRITISH MARKET RESEARCH BUREAU, COMPREHENSION AND USE OF UK NUTRITION SIGNPOST LABELLING SCHEMES: SCIENTIFIC RATIONALE AND DESIGN (2008).
175. See BRITISH MARKET RESEARCH BUREAU, COMPREHENSION AND USE OF UK NUTRITION SIGNPOST LABELLING SCHEMES: COGNITIVE TESTING REPORT (2008).
176. Id. at 1.
177. Id. at 72.