Some extra pepperoni slices on your next pizza could trigger lawsuits against your neighborhood pizza joint and even land the store manager in jail, according to opponents of a controversial federal rule.
The Food and Drug Administration has given restaurants another year to prepare for a federal rule requiring all menu items to have calorie counts. But one pizza chain is asking Congress to make substantial changes to parts of the rule it finds unreasonable.
Dominos, one of the largest pizza chains in the U.S., is concerned it will have difficulty implementing several parts of the rule because of the thousands of ways customers can order their pizza.
For instance, customers can get half anchovies and half Canadian bacon, or half pineapple and salami.
And it’s worried that all those combinations — or maybe a stray pepperoni slice or extra, extra cheese — could open up its stores to class-action lawsuits or even criminal penalties.
The rule, required by Obamacare as a way to combat obesity, applies to all chains of 20 or more restaurants, including tiny eateries in grocery stores.
Say a customer orders a large pepperoni pizza. That large pie has to have a certain amount of pepperoni slices on it to meet the calorie limit, which according to a calorie calculator from Dominos is about 300 calories per slice of pizza.
“If a kid puts a couple of extra pepperoni on it, what happens if they don’t do the exact right thing?” asked Lynn Liddle, an executive vice president of Dominos. Liddle is also chairwoman of the trade group American Pizza Community.
If it isn’t the exact count, it would be in violation of federal law, she told the Washington Examiner Monday.
“A pizza store manager could literally go to jail if some class-action lawyer came in and said your pizza was not to the calories we had on there,” Liddle added.
The agency, however, hinted that enforcement wouldn’t be that strict.
“Enforcement will be considered on a case-by-case basis depending on the specific facts and circumstances,” according to an FDA statement.
The agency also plans to develop additional guidance for the industries affected to help implement the rule.
The rule itself specifically addresses pizza and ice cream, another food whose calorie counts could be affected by quantities and types of toppings. The rule allows a pizzeria to set up a range for calorie counts for each topping, such as adds 150 to 250 calories to the whole pizza.
Dominos is still concerned about how it will pay to implement the new rule.
New York City required calorie counts on menu items for restaurants starting in 2009, so Dominos already has a template for how the federal law will affect its locations there.
Liddle said that the New York law cost $4,000 per store to implement. The cost was mainly through creating new menu boards with ranges of calories for various pizzas.
The cost includes having to switch out menu boards to reflect new calorie counts, she said.
However, the estimate doesn’t take into account the potential for lawsuits.
“When you start bringing class-action lawsuits into things, it exacerbates the cost every way possible,” Liddle said.
Some food trade groups have tacitly supported the rule. The National Restaurant Association, which has a pizza industry council, said it has fully supported the menu labeling-standard.
“Some of our members are ready to implement menu labeling, while others still need more time,” the association said.
With the pizza industry still wary of the rule, which now must be implemented by December 2016, Congress is stepping in.
A House bill introduced in April by Rep. Cathy McMorris Rodgers, R-Wash., and co-sponsored by Loretta Sanchez, D-Calif., would shield restaurants from criminal penalties or lawsuits if the calorie count is inadvertently exceeded, Liddle said.
It also would not consider advertisements as menus, another area of concern.
Currently the rule says a flyer or poster could be considered a menu if it has a picture of the product and a price, and therefore must include calorie counts for the items advertised.
That affects a lot of pizza chain advertising, which “all has price points. We don’t just do image advertising like a car company,” Liddle said.
The bill is supported by industry trade groups such as the National Association of Convenience Stores, whose members are affected by the rule.
