Menu Labeling bill strategy, California Public Health Advocacy

Rudd Center for Food Policy and Obesity, Yale University
A Case Study of California’s Menu labeling Legislation
January 2008
Summary
In 2007, California State Senator Alex Padilla introduced a bill to mandate that calorie
information be listed on menu boards and menus of all restaurants which have 14 or more
chains in the state. It would have been the first statewide policy of its kind in the nation. The
goals were twofold: to provide consumers with the nutrition information they need to make
informed choices; and to prod the industry to reformulate their recipes to make them
healthier. Chains such as Subway were using menu labeling as a platform to say “we care
about our customers” and it was hoped that peer pressure would build, and others would
follow suit. The bill was shepherded successfully through both chambers of the legislature,
but vetoed by Governor Arnold Schwarzenegger on October 14, 2007. It will be
reintroduced in January 2008. For this case study, I interviewed Amanda Purcell, Director of
Policy at the California Center for Public Health Advocacy (CCPHA), the lead advocacy
organization for the bill, and Mike Miller, President of Brown Miller Communications, Inc.,
who coordinated the publicity for the bill.
Bill specifics
• Bill number/name: SB 120 on Food Facilities: Nutritional Information
• Filed: January 2007
• Introduced by: Senators Alex Padilla (D-San Fernando Valley) and Carole
Migden (D-San Francisco)
• Principal co-author: Assemblyman Mark DeSaulnier (D-Concord)
• Coauthors: Assembly Members Coto, Hernandez, Mendoza, Saldana, and
Solorio
• Vetoed by Governor Schwarzenegger: October 2007
• Third such bill brought before the California legislature
• Mandates chain restaurants to label their menus and menu boards with nutrition
information at the point of purchase.
• Major opposition included: the California Restaurant Association, the Grocery
Manufacturers Association, the State Chamber of Commerce, and the California
Independent Grocers Association. The lobby groups took the “heat” for the
restaurants so the latter would not appear to be against health and nutrition issues.
Major provisions of the bill
SB 120 would mandate that nutritional information be made available for all standard
menu items in restaurants with common ownership or control, with at least 14 other facilities
of the same name in the state. On menu boards, only the total calories must be posted in a
clear and conspicuous manner (restaurants can choose to add other information if they wish.)
Menus must list total calories, grams of saturated fat, trans fat, carbohydrates and milligrams
of sodium.
The political context
The success of the bill depended greatly on advocacy organizations taking the lead role to
promote it. After careful deliberation, CCPHA, the American Heart Association, Western
States Division, the American Cancer Society and the California Optometric Association
decided that menu labeling would be a significant public health measure and so took the lead
as sponsors of the bill.
The quick and seemingly successful trajectory of this bill was due to a positive political
context during its life, called a “perfect storm” of circumstances by both CCPHA and Brown
Miller Communications. Governor Arnold Schwarzenegger had been elected on a platform
which included highlighting health care, children, and obesity prevention; after many years
of public focus on obesity, the epidemic reached a higher status on many legislators’
agendas, resulting in many bill filings on nutrition and physical activity. Legislators were
becoming more well-informed on the obesity issue, which was reflected in their speeches on
the Assembly floor. Senator Alex Padilla, although newly elected to the Assembly, was
gaining respect and stature, could command loyalty to his causes, and was being watched as
a rising star. And, coincidentally and significantly, he was looking for a good nutrition bill to
sponsor when he was approached by CCPHA and the American Heart Association (AHA.
The “inside” (State House) process and strategy
The bill language was written by CCPHA and the American Heart Association, using
model language provided by the Center for Science in the Public Interest. It was vetted by
lawyers who edited the language in several ways to respond to concerns. Responsibility for
enacting the law was shifted to local jurisdictions rather than the State Department of Health.
Language was also added that would prevent liability lawsuits being brought against the
restaurants. Lawyers found that because most chain restaurants already provide nutrition
information (albeit not on menus or menu boards) and use disclaimers, there would be no
increased liability.
In searching for the best legislative author, CCPHA and AHA initially looked for the
strongest returning legislator who wielded power and respect, was seasoned, and able to
withstand the opposition that would come his or her way, and of course, had an interest in
public health. Not finding the right fit among returning legislators, they instead turned to
Alex Padilla, a young, first term, “rising star.” Padilla had served on the LA City Council,
and had run for the Assembly seat without party support—a move described by Amanda
Purcell as “taking “gumption.” In addition, Padilla had done local work on nutrition, had a
longstanding relationship with the American Diabetes Association, was deemed an up-andcoming leader, and fortuitously, was looking for a good nutrition issue to highlight in his first
term. He willingly took on the menu labeling legislation, and as promised, worked hard for
its passage. The latter is a crucial element to the success of any legislation, but particularly
one as controversial as menu labeling. The Senator contacted all of his colleagues to lobby
for the bill.
The bill was given a fiscal impact study, which helped its successful passage through the
Senate Appropriations Committee. While the Senate found the bill to not have any state
costs associated with it, the Assembly Appropriations Committee nevertheless gave it a
$100,000 price tag. While this was deemed a purely “political” move, it did not have a
negative impact on the bill’s passage.
The bill sponsors organized panels of experts for the legislative hearings. Although
hearings are sometimes only a formality (because the members’ votes are secured
beforehand), the bill sponsors strategically packed the hearing room, and asked each attendee
to submit a letter of support, which was recorded in the analysis of the bill.
The “outside” process and strategy
The exceedingly quick trajectory of this bill toward successful passage through both
chambers was due not only to the “perfect storm” of political circumstances but also to
waging a strong grassroots advocacy campaign, led by the bill sponsors. The key elements
of the campaign included educating the public, enlisting the help of grassroots organizations
and individuals, and strategic use of the media, including the internet. Preparing for and
responding to opponents was a thread woven through each of these elements as well.
Educating the Public
To educate and activate the public CCPHA arranged a series of forums in the summer of
2006. Margo Wootan, Director of Policy at Washington D.C.’s Center for Science in the
Public Interest was the keynote speaker. The forums were scheduled to take place in those
districts represented by legislators who did not yet support the concept of menu labeling.
The well-publicized and well-attended forums presented people with basic information on
menu labeling and why people should care, and encouraged participants to become activists
by signing up for the CCPHA network and sending letters to their legislators in support of the
bill. They also trained spokespeople around to state to communicate the message to the
media.
Grassroots and organizational support
CCPHA decided on a strategy of “tiered” support. Four groups became the top tier of
“sponsors” of the bill: CCPHA, the American Cancer Society, the American Heart
Association and The California Optometric Association. These groups committed to
lobbying at the State House, testifying at the hearing, speaking to the media, and allowing the
use of their logo on materials. The second tier was a group of “endorsers,” including groups
which had historically supported school foods legislation, and many other grassroots
membership organizations whose members could be approached for support. The goal was
to build a robust database of activists who could activate on short notice, sending faxes,
letters, and emails to legislators. (Indeed, they jammed the Governor’s fax machine with
incoming letters once the legislature had passed the bill and it was on Schwarzenegger’s
desk.) They also sorted the database by legislative district and were able to enlist
constituents in districts represented by “wavering” legislators to call and make their opinions
known. While there is sometimes doubt amongst advocates that form letters actually make a
difference, the bill sponsors determined that in this case they would, after hearing from
legislators that they were getting a lot of correspondence in opposition to the legislation from
restaurant owners. The bill sponsors then made sure that the legislators heard from a critical
mass of supporters.
Using the Media
One overarching media strategy was to always keep the message simple and to the point:
people have a right to this information. By framing the message as “the right to know” and
the “need for information” they were strategically positioning legislators to respond
positively on record. After all, no legislator would say that people don’t have a right to
know! In addition, details on the bill were kept to absolute essentials.
To create a “buzz” on the topic, CCPHA with assistance from Brown Miller
Communications and the other bill sponsors commissioned the Field Research Corporation to
add menu labeling questions to its poll of 523 registered California voters in March of 2007.
Field asked if respondents supported requiring fast-food and chain restaurants to post
nutrition information on their menus and menu boards, and gave them a “fast food nutrition
quiz” to test their knowledge of nutrition in foods served in popular chain restaurants. (See
attachment for poll questions and results). The results showed an overwhelmingly positive
attitude toward menu labeling and proved to be extremely useful in getting the message out
through the media. Overall, a majority (84%) favored menu labeling. Even when broken out
by specific demographics, the support was overwhelmingly in favor. For example, those in
support included:
• 78% of Republicans and 89% of Democrats
• 83% with a high school or less education, 82% with college or trade, and 80% of
college graduates
• 85% of southern Californians, 84% of northern, and 77% of Central valley residents
• 83% white, non-Hispanics, 90% African-Americans and Asians, and 88% Latinos
• 85% of those earning less than $20,000/yr, 87% earning $20-40,000, 85% earning
$40-80,000, and 82% earning more than $80,000.
The “fast food nutrition quiz” included four seemingly easy questions about items served
at fast food restaurants, asking participants to pick the one they thought had the fewest
calories, salt, or fat. No one answered all four questions correctly and 68% were unable to
answer even one correctly. These scores were poor, regardless of education or income
levels. When CCPHA and Brown Miller distributed the quiz to the media, their strategy
proved to be exceptionally smart and, inadvertently became a strategic viral marketing tool.
When journalists took the quiz and did as poorly as the average citizen, their amazement at
their own ignorance and inability to answer the questions correctly prompted them to send
the quiz to other press rooms around the state. After that the story “wrote itself,” as Mike
Miller put it, showing up in editorials, features, and food sections in all the major California
newspapers, and many local papers as well.
The media’s reporting of the poll results also helped to educate the public and enabled
advocates to counter the National Restaurant Association’s assertion that people don’t need
or want the information because they already knew how to select healthy options. CCPHA
anticipated that the bipartisan support for menu labeling would help them when it came time
for the Governor’s vote.
As stated previously, another aspect of the media strategy was to train spokespeople who
would get their local newspapers to report on the issue. Legislators follow their local papers
closely, and so CCPHA and Brown Miller were very thorough in getting to all those “fence
sitting” legislators’ districts. They found success except with a few very conservative
newspapers which wouldn’t develop the story.
Throughout the campaign, the another aspect of the strategy was to use the media to keep
the Governor’s 2007 platform of health care reform, and his history with it, in the public’s
eye and to serve as a reminder to the Governor of his commitments. News “events” (not
actual press conferences, because there often was no “news”) were used as a visual
opportunity to show the level of support for the bill. At times, they gathered groups of
people for the events, and used props such as menu boards showing typical fast food calorie
counts to demonstrate the issue.
Just before the Governor was scheduled to consider the bill, the bill sponsors and Brown
Miller reinvigorated his arguments about childhood obesity and health care, reiterating that
this was a “no brainer,” the right direction at the right time, and declaring that “of course” he
would pass it. They were essentially challenging him to take the reins, lead the nation on the
issue, and giving him media attention for it. By characterizing it as a “natural” for
Schwarzenegger they were, in a sense, trying to create a positive spin on Schwarzenegger’s
stance so it might prove embarrassing for him to think of taking an opposing one.
Brown Miller and CCPHA had a few other media tactics ready to use. One was to take
out a full page ad in the Sacramento Bee (the capitol’s major newspaper) and the Capitol
Weekly. The other was to post several videos about the issue on YouTube. The videos were
shot, but never posted. They may be used for the next round of the legislation.
Post mortem
The bill sponsors and Senator Padilla launched this menu labeling campaign expecting it
to be a multi-year process, and so were surprised and of course thrilled to watch its quick
progress through the legislative process, all within the space of about a year. But in retrospect,
both CCPHA and Brown Miller expressed some concerns about the pace of this march. One was
that having used significant political capital to get this far, it may be difficult to get the bill to
the Governor’s desk again in the near future.
When a bill takes longer to navigate the legislative process, advocates also have the
advantage of building a gradual comfort level with legislators who might either see the bill as
less “radical” or are simply worn down after years of exposure to the issue, and so may vote for
it. On the other hand, part of the “perfect storm” for this bill was its tremendous momentum,
and general lack of questioning of its premise. As Amanda Purcell reported, no one said “I
don’t know why you’d do this.”
The Governor vetoed the bill on October 14, 2007. His publicly stated reasons for the
veto included that it:
• would place burdens and costs on some restaurant owners while imposing no
burdens or costs on others.
• provides restaurants with little flexibility for how they give consumers nutritional
information. He asserted that many restaurants are already providing this information in
a variety of ways, including on the internet. The latter way, he said, would allow
customers to make comparisons between restaurants.
• was not, as an “inflexible mandate applied sporadically,” an effective way to
educate Californians about healthy living.
He also maintained that California restaurants have demonstrated to him their commitment to
work toward menu labeling on their own, and called on them to continue that work.
In response to Governor Schwarzenegger’s veto, CCPHA’s executive director, Harold
Goldstein issued a statement expressing his disappointment in seeing the Governor “walk away
from his opportunity to lead the nation on a critical public health issue.” He reiterated the need
for basic information in order to make healthy decisions and pointed out that this decision
contradicts Schwarzenegger’s commitment to Californian’s health, which included menu
labeling as a key element in a comprehensive obesity prevention plan. He also criticized the
Governor for kowtowing to “rich special interests” including the “powerful restaurant lobby”
rather than serving the people’s needs.
The Future
The bill sponsors and Senator Padilla are considering their options for re-introducing a
menu labeling bill in 2008. Also it is expected that the California Restaurant Association will
introduce its own weakened version of a menu labeling bill as a way of fighting any version of
SB 120 that might be re-introduced in 2008. The CRA bill will most likely require nutrition
information to be posted in some other location other than on menus and menu boards.
The Rudd Center for Food Policy and Obesity, 309 Edwards St. PO Box 208369, New
Haven, CT 06520-8369; www.yaleruddcenter.org; (203) 432-6700.