A recent ban of trans fat from restaurant foods by New York City’s (NYC) Board of Public Health broke new ground in the world of product development. While much of the food industry has devoted substantial efforts to removing or reducing trans fat levels, New York City now imposes a level of interference that many believe will do more harm than good. The public focus on trans fat content was propelled by the mandatory labeling requirement for packaged foods effective January 1, 2006, per the FDA. Savvy regulatory affairs experts would have bet wisely that the “regulatory action” on trans fat was over, and companies would continue to remove trans fat from foods. NYC decided otherwise.

Another seemingly safe bet? A well-intentioned government agency would not unilaterally act to ban a nutrient because it is considered of public health concern. After all, no one ever banned cholesterol- or sodium-containing foods. The wisdom and lawfulness of the unprecedented action by NYC are important questions, though not addressed in this article. Instead, the trans fat ban provides insight into the dynamics of product reformulation, the impediments to achieving change and the potential unintended consequences of regulatory intervention.

The Ban

The board kept its promise to rid NYC restaurants of trans fat. While claiming to have taken into account industry concerns, the ban will wreak havoc on both ongoing and new reformulation efforts. The prospects that other local jurisdictions might follow NYC’s lead (on trans fat or any other nutrient of local concern) may well change the way companies manage product development efforts. After July 2007, it will be illegal for restaurants to use cooking oil that contains trans fat. By July 2008, restaurants will no longer be permitted to sell any foods that contain trans fat.

Regulatory intervention does not change the fundamental barriers and hurdles faced by the food industry in trying to eliminate trans fat. Several restaurant chains have announced plans to move to 0g trans fat cooking oils after investing years in achieving a reformulation that did not negatively impact taste or nutrition. Many others are still working. The pace of change is dictated by factors that cannot somehow be regulated away.

Food companies must address three types of challenges—availability, functionality and cost. The cultivation of alternative oils takes time, including perfecting suitable seeds before crops can be planted and then processed in sufficient quantities to meet commercial demand. Supply levels are expected to hamper changes away from current oils for at least several years, with growing demand imposing greater costs until supply catches up.

Reformulation is time-consuming and complicated. Not all oils are created equal. Oxidative stability (melting point, shelflife, off-flavors) and “hardness” of fat (texture and crispness) are two key variables, and suitability will vary with the food and process involved. Switching to a commercially available alternative may remove unwanted trans fat, but there is no benefit if the reformulated product is unacceptable to consumers

Unintended Consequences

Absent viable alternatives, operators will turn to traditional higher saturated-fat cooking. This outcome has nothing to do with good or bad intentions by the restaurant, but rather reflects the realities of product reformulation.

The city’s legal authority is also in doubt given that Congress long ago established a federal framework for the regulation of safe and suitable foods given the realities of a national marketplace. Imagine if each jurisdiction were left free to pick its “nutrient of choice” to ban?

Diet and health will continue to prompt product innovation. Ongoing efforts will continue to yield success in formulating out trans fat from foods. A government ban does not remove the barriers to more rapid innovation.