As the Food and Drug Administration inches closer to issuing rules that would require vending machines to display calorie labels, a bipartisan group of lawmakers is arguing for less onerous alternatives. Yet these alternatives still can’t salvage the rule, which will cost $26 million to implement and then $24 million each year in ongoing costs.

The proposed alternatives focus on reducing the regulation’s costs but fail to address the real underlying problem – the rule is unlikely to produce any benefits. The FDA’s own analysis struggled to justify the rule and ultimately failed to do so. But instead of admitting that the regulation will not work, the FDA is proceeding with a wasteful effort.

The rule, mandated by the Affordable Care Act, explains that lack of self-control contributes to obesity; people struggle to control their urges to eat unhealthy snacks or to limit their portions. The FDA’s solution to the problem: require vending machines to display caloric information for each vending item. Of course, this information is already available on the item’s nutritional label. But, as the FDA argues, the nutritional labels are not clearly visible in the vending machine and consumers will not see them until after the sale.

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Now imagine that you have never tried any of the candies sold at a vending machine. The first time you buy that candy, you would not know its caloric content. But once you have it in hand, you can easily look at the label. The next time you buy that candy from a vending machine, you should already know what’s on the label. If you don’t, it’s more likely because you aren’t interested than it is that the caloric information needs to be displayed more prominently.

In fact, FDA’s own analysis does not blame lack of caloric information for increasing obesity. It clearly points to lack of self-control on the part of consumers as the culprit behind unhealthy eating habits. FDA makes no effort to tie its calorie display prescription to the underlying problem it identifies. Nor does it explain how displaying the same information in another venue would help consumers control their desires for unhealthy snacks. It does not even state what exactly it expect consumers to do – choose a healthier snack or forgo vending machine purchases altogether.

Ultimately, the FDA could easily dispel any conflicting views over the rule’s effectiveness by testing it. It would be relatively easy for the agency to set up a few vending machines with caloric information clearly displayed to see if the rule impacts consumer behavior. The agency could measure this impact to decide if the rules benefits, if any, justify its substantial costs. Instead, the agency simply noted the lack of real life data and refused to adequately estimate the rule’s benefits.

While the FDA’s predicament is understandable, it is inexcusable. Since Congress mandated the rule through the Affordable Care Act, the FDA has no choice but to comply. But it is also the agency’s job to use its expertise to advise lawmakers. If the mandated rule is unlikely to achieve its goals, the agency should clearly state so in its analysis and not waste society’s resources on yet another ineffective regulation that won’t do anything to curb obesity.

