Any restaurant with more than 20 locations is required as part of the Affordable Care Act to display dishes’ calories on print and digital menus, as well as to make other nutrition information available. These delivery apps weren’t prevalent when the menu-labeling requirement was established.
Creating supermenus displaying all of the restaurants and foods available, these third-party platforms use artificial intelligence and sophisticated algorithms to track consumers’ lifetime purchases and make strategic “upsell” suggestions, additions that often increase calories consumed, according to Jeff Chester, executive director of the Center for Digital Democracy. Sites and apps that don’t offer calorie counts and nutrition information leave consumers more vulnerable to persuasion, he says.
Consumer advocacy groups such as the American Heart Association, Consumer Reports and the Center for Science in the Public Interest asked the FDA this week to close that loophole, a loophole that has taken on greater significance during the pandemic as consumers’ ordering habits have changed.
“Until the FDA issues interpretive guidance confirming that menus listed on third-party platforms are required to list nutrition information, many covered establishments will not do so, causing a gap in access to information. This gap has become increasingly important as more Americans order meals through third-party platforms during the covid-19 pandemic,” reads the group’s letter, sent Thursday to Susan Mayne, director of the FDA’s Center for Food Safety and Applied Nutrition.
About 80 percent of non-pizza digital orders early in the pandemic were done through ordering platforms such as DoorDash, Seamless, Grubhub and Uber Eats, according to market research firm NPD Group, which tracks restaurant spending.
Spicy fried chicken sandwiches, hefty beef burritos and other calorically dense food have seen tremendous growth in popularity during the pandemic. An Axios-Ipsos survey in February asked about weight gain, finding 32 percent of Americans saying they recently added weight. The Centers for Disease Control and Prevention says obesity worsens covid-19 outcomes and estimates that 30 percent of hospitalizations were attributed to obesity.
Brian Ronholm, the director of food policy at Consumer Reports, says the restaurant industry has always tried to find ways to hide this information and that, before the menu-labeling requirements went into effect in May 2018, many restaurants wanted to keep the information online somewhere but not put it on menus.
“The pushback from FDA is that there may be more important enforcement issues right now, but information like this is going to be more important than ever,” he said.
In a statement, the FDA says it recognizes that the dining landscape has changed considerably since the menu-labeling requirements were passed into law, especially with the rise of third-party websites and delivery apps to provide convenient options for ordering to dine at home.
“Third-party ordering websites were not covered in the ACA language, so they are not required to comply. They could comply voluntarily if they choose to,” an FDA spokeswoman said.
McDonald’s has chosen to post calorie and nutrition information across its own restaurants and digital platforms as well as third-party delivery platforms. Ronholm pointed to this as evidence that other restaurants could easily do this but elect not to.
Grubhub, DoorDash and Uber Eats spokeswomen said that their companies’ platforms allow restaurants to post calorie counts and nutrition information in the description fields on menu items. Most do not.
Asked about the consumer groups’ request that the FDA close this loophole, Campbell Matthews, a DoorDash spokeswoman, said: “We welcome the opportunity to engage with policymakers and stakeholders on this and other important issues impacting our industry.”
Eva Greenthal, senior science policy associate at the Center for Science in the Public Interest, says that the responsibility is on both the restaurants and the third-party platforms, and that if dishes aren’t labeled as per the law, they are “misbranded.”
“The law is explicit in saying that menus posted on the Internet are included, it’s unambiguous,” she said. “We have this great public health legislation in place that should help consumers make healthy choices — the law was written with that intention. But now that most people are online-ordering, the law will not have its intended effect.”
According to an FDA regulatory impact analysis, healthier consumer behaviors arising from the ACA menu-labeling policy change were expected to yield a net savings of $8 billion in health-care costs over 20 years.
Chester says these third-party ordering apps combine powerful profiling of consumers with effective predictions in how to sell them more.
“They are constantly gathering data and analyzing what you and your friends do, in order to increase basket size, increase sales and make you order more than you otherwise would,” he said. “What the FDA really should do is open up an investigation with the Federal Trade Commission, but at the very least there should be a real-time notice that what you’re about to order totals 1,800 calories, that this bucket of chicken and fries is the equivalent to your daily calorie count.”
Chester points to DoorDash’s own language about optimizing spending with machine learning: “The first building block our marketing optimization system needs is an understanding of how every new user came to DoorDash. Which ads did they interact with on their journey to becoming a DoorDash customer? … Our channel partners provide us data for which DoorDash customers converted through their channel. … Switching to [a machine-learning]-based lifetime value model so that we can optimize our spend for users’ total lifetime value rather than for one-time conversions.”
Chester says these are “highly addictive tools” and that the platforms use information about customers to manipulate their purchases.
“In fact, these apps are smarter than you,” he said. “If these apps are the back door to even more obesity in the U.S., then at the very least the FDA should come in and say that nutrition information has to be in the foreground.”