Whole Foods CEO John Mackey caught some flak in January when he called the Affordable Care Act “fascism” (and soon backed down). Mackey, however, continues to point out that, under Obamacare, it will be difficult for him to provide employees the health care benefits package he can afford.

The administration may get the last laugh, after all. This Associated Press story notes that food labeling regulations in the law are proving difficult for the Food and Drug Administration to formulate because they’re so darn complicated.


The 2011 proposed rules would require chain restaurants with 20 or more locations, along with bakeries, grocery stores, convenience stores and coffee chains, to clearly post the calorie count for each item on their menus. Additional nutritional information would have to be available upon request. The rules would also apply to vending machines if calorie information isn’t already visible on the package. (Emphasis added.)


“It’s a huge problem for us,” says Erik Lieberman of the Food Marketing Institute, which represents retail grocery chains. He says fighting the menu labeling rules is one of his group’s top priorities.

Lieberman says the rules could cover thousands of items in each store, unlike restaurants, which typically have fewer items. The rules could go beyond just the prepared foods case and extend to cut fruit, bakery items like pies and loaves of bread and other store items that aren’t already packaged and labeled. Lieberman says that means each store has to send all of those items out to labs to be tested, do paperwork to justify the ingredient and nutritional information for each item to the FDA and then create signage and train employees to use it.

Convenience stores say they will have similar problems.

“In a small store like a convenience store that is really putting a lot of signage all over the place,” says Jeff Lenard of the National Association of Convenience Stores, referring to the calorie labels. “You just hit a point where words become noise and that’s not good.”


Perhaps it’s no surprise that large restaurant chains had no problem with the rules, because they offer standard portions — and — with that advantage, they have a leg up on fresh-food providers (including delis and bakeries at supermarkets) that offer unique products to their shoppers, even if they’re as mundane as a bowl of soup or a slice of cake.


Scott DeFife of the National Restaurant Association says the supermarkets are exaggerating how much it would cost them to implement the rules. The restaurant industry has lobbied for the prepared foods in supermarkets and convenience stores to be included, saying they are selling essentially the same things.


Rent-seeking, anyone?

If these rules go into effect, however, specialty grocers such as Whole Foods and Fresh Market will face massive compliance costs, as a good deal of their business flows from foods prepared on-site, on-demand, in unique portions that cannot easily be counted for calories, fat content, etc.

And since these stores tend to cater to the lefties who think Obamacare is awesome, all I can say is: See ya at Food Lion.