The bartender at the Cheesecake Factory inside White Flint Mall knows exactly where to draw the line between being customer-friendly and betraying her employer. She chokes off the information stream as soon as I ask one too many questions about the restaurant’s Flying Gorilla cocktail, this liquid libation described on the menu as a “ ‘Kicked-Up’ Chocolate Banana Milkshake.”
When I first inquire about the Gorilla, she tells me I won’t even taste the small shots of banana liqueur and creme de cacao in the drink. She’s so giddy about the creamy cocktail, she almost makes me excited to be sucking down an alcoholic shake at an Egyptian-theme chain restaurant inside a Rockville mall just steps from a nearly depleted Borders outlet where practically everything’s for sale short of the employees’ personal footwear. I try to mirror the bartender’s enthusiasm and ask about the other ingredients in the Flying Gorilla.
“I’d get fired if I told you that,” she says, impressive in her facility to blow me off with such good humor. A few days later, I called the Cheesecake Factory’s press people, who were equally cheerful as they turned down my request for the recipe.
The information is important for one simple reason: America’s fat.
You’ve heard the statistics by now and, more immediately, have probably felt that extra jiggle around your waistline. The Obama administration has fired off a number of weapons to combat the, ahem, massive problem, from the first lady’s “Let’s Move” campaign to the new veg-friendly Dietary Guidelines for Americans, but its latest offensive push came on April 1, when the U.S. Food and Drug Administration published proposed regulations for nationwide menu labeling. As written, the regulations require all “chain restaurants, retail food establishments, and vending machines with 20 or more locations” to list caloric information on their menus and menu boards. Two categories were conspicuously exempted from the requirement: movie theater chains and alcoholic beverages.
This is where chains such as the Cheesecake Factory, Applebee’s, Chili’s and others come in. They serve alcohol of every stripe. Many have specialty cocktails, too, such as the Flying Gorilla or Applebee’s Mud Slide or the Chili’s line of designer margaritas. None of the chains may ever be required to list the drinks’ caloric information on their menus (except, of course, in those jurisdictions such as New York City where local labeling laws already require such information).
“The problem is that alcohol is a big source of calories in the American diet,” says Margo Wootan, director of nutrition policy for the Center for Science in the Public Interest.
How big is a matter of personal drinking habits. In her forthcoming book, “Calories: From Science to Politics” (co-written with Malden Nesheim; University of California Press, 2012), nutrition expert Marion Nestle will publish a complex formula on how to determine the caloric content of the alcohol in your drink when all you know is the alcohol-by-volume information. It practically takes an advanced degree in mathematics to figure it out.
Fortunately, Nestle offers an example in the book: A six-ounce pour of wine with 13.5 percent alcohol by volume, for instance, translates into about 140 calories. Drink two glasses of that wine with dinner, and you’ve added about 280 calories to your meal. Which would almost be considered a diet drink compared to the Flying Gorilla. Based on a modified recipe found online, this “ ‘Kicked-Up’ Chocolate Banana Milkshake” might contain anywhere from 590 to 870 calories per drink, depending on how much ice cream is used.
Outside the realm of high-calorie ice cream drinks, the numbers sound more reasonable: The standard servings of wine (five ounces), light beer (12 ounces) and spirits (1.5 ounces of 80 proof alcohol) generally contain about 100 calories from the alcohol alone, not including additional calories from any mixers, syrups, fruits, grains or other ingredients used in the production of the drink. “Regular” beer generally contains about 150 calories, depending on its alcohol content; that compares favorably with soft drinks, which contain about 151 calories, according to the U.S. Department of Agriculture National Nutrient Database.
The problem here is threefold. As with soft drinks, alcohol is devoid of nutritional value, and your body doesn’t tend to register liquids as it does solid food. “A beverage doesn’t make you feel full the way that food does,” says CSPI’s Wootan. Plus, as Nestle points out, those who drink too much can overwhelm their liver’s ability to metabolize acetaldehyde, a “potentially toxic substance responsible for much of the damage to the liver, heart and other organs seen so frequently in heavy drinkers.”
Now imagine a menu where the calories are listed for all of the drinks except for beer, wine and spirits. To Wootan’s way of thinking, that’s a setup for overindulging on empty calories and on a potentially organ-damaging substance. The lack of caloric information for alcoholic beverages, she notes, would “mistakenly give the impression that [they] are a better choice.”
So what was the FDA thinking in not including alcohol in the proposed regulations for menu labeling? The agency apparently does not believe it has jurisdiction over alcohol, citing case law that states that the federal Alcohol and Tobacco Tax and Trade Bureau has authority over most alcohol labeling. According to the Federal Register notice of April 6, it “is not clear that Congress intended for the nutrition information disclosures . . . to apply to alcohol beverages, given that the labels of the majority of alcohol beverages are regulated by TTB.”
The FDA’s argument ignores two simple facts, say nutritionists and public health advocates. One: The FDA does have regulatory authority over some alcohol, including wine and hard ciders that contain less than 7 percent alcohol by volume, as well as beers made from grains other than barley and hops. And two: The FDA’s proposed menu labeling regulations include foods, such as red meat and poultry, over which the U.S. Department of Agriculture has regulatory and labeling authority. Why does the FDA feel justified in invading the USDA’s territory but not the TTB’s?
If jurisdictional authority isn’t really the issue, what is? No one at the FDA would comment, other than with this written statement: “FDA has proposed alcoholic beverages should not be covered, but we invite the public to provide comments on whether or not alcoholic beverages should be covered under the nutrition labeling requirements.”
But Wendell Lee, general counsel at the Wine Institute, lays out a more plausible explanation: The FDA is probably waiting for the TTB to sort out its own alcohol labeling problem. For more than four years now, the TTB, a bureau in the Treasury Department, has been trying to referee a fight among the wine, beer and spirits industries, all of which want different information placed on their products — or information placed in different spaces on their packages. Frankly, the nuances of that battle are far too complicated to explain in a short newspaper article, but they deal with issues dear to the industries involved: sales and marketing, market competition, public perception and, biggest of all, taxation.
“It’s still in review,” TTB spokesman Tom Hogue says of the alcohol labeling regulations. “It’s not an easy review.”
In the meantime, Lee thinks the TTB’s lack of movement hamstrings the FDA, since the latter agency might not want to create two different systems that producers would be required to use to determine the nutritional values of beer, wine and spirits. Such dueling systems could create an extra and unnecessary financial burden for some small producers, Lee says.
Everyone, from the Center for Science in the Public Interest to the Distilled Spirits Council, wants the FDA to work with its agency counterparts at the TTB to create a workable solution to menu labeling for alcohol. But that might be easier said than done. As George Hacker, a CSPI senior policy advisor who has worked on alcohol policy since the early 1980s, says, the TTB is “buffeted by political forces.” It’s a Treasury agency that regulates an alcohol industry that generates $7 billion a year in tax revenue. A large part of the TTB’s mission is to collect excise taxes.
With a mission like that, the TTB must walk a fine line between providing consumers with useful information and not affecting the alcohol industry in such a way that deprives the treasury of much-needed revenue. That line, at least in Nestle’s view, is too often blurred in the name of money. As the nutritionist writes in her book, “Regulating alcohol . . . is about tax revenues, not health.”