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Judge Overturns New York Menu Rule -- Or Does He?

Both sides claim victory in court's decision over calorie postings

By Truman Lewis
ConsumerAffairs.com

September 12, 2007

• Judge Overturns New York Menu Rule -- Or Does He? • NYC Restaurants Sue To Block Calorie Info Rules --- • Related stories ...

Both sides have claimed victory in a federal judge's ruling that New York City’s fast food outlets do not have to comply with the city’s new law requiring them to post the calories in their burger meals, along with other nutritional information.

A federal judge ruled the city’s law is trumped by federal regulations, but the New York City Health Department called the ruling a “technicality” and said the city may draft a new law to comply with the ruling.

The Center for Science in the Public Interest (CSPI) and Public Citizen both sided with the city's interpretation.

The ruling came in a lawsuit filed by the New York Restaurant Association. U.S. District Judge Richard Holwell upheld the city’s right to require nutritional labeling. The sticking point, however, was the city’s requirement that restaurants already revealing caloric content would also have to post that information in large type on all menus.

Restaurants that do not now reveal calorie information would not have to comply with the rule.

Holwell found in favor of the restaurant association, saying a 1990 federal law established nutritional labeling guidelines, setting out guidelines for voluntary reporting of nutritional information. New York City, he ruled, has no power to change those guidelines.

CSPI called the ruling "idiosyncratic" while the restaurant association hailed the decision. Association president Rick Sampson said the ruling validates the groups position that the government is intruding into areas where it does not belong.

“The judge provides a road map for cities and states to draft menu labeling regulation so that it doesn’t conflict with federal law,” said CSPI Litigation Director Steve Gardner. “Though it blocks the city from enforcing (its existing) regulation ... this decision gives cities and states a green light to make nutrition information mandatory at restaurants.”

Other laws OK

“The court’s narrow finding is very good news for jurisdictions like King County, Washington, which enacted a menu labeling regulation in July that would not be preempted,” said Deepak Gupta, a lawyer at Public Citizen who wrote a brief in the case. “And the statewide bill that just passed in both houses of the California legislature would also be safe from preemption under this ruling.”

In December, the New York City Board of Health passed a regulation requiring restaurants to list calories on menus and menu boards. But only restaurants that already made calories available voluntarily on brochures, web sites, or elsewhere were covered by the measure. In order to avoid complying, some chains, notably Wendy’s and Chipotle, took down nutrition information from their web site or stopped making it available in New York City.

In July, Public Citizen and CSPI filed a brief in support of the city’s menu labeling regulation, signed by Representative Henry Waxman (D-Calif.), former FDA commissioner David Kessler, the American Medical Association, the American Diabetes Association, and other prominent public health organizations and nutrition experts.

“The majority of state or local regulations — those that simply require restaurants to provide nutrition information — therefore are not preempted,” Judge Holwell wrote. “Such regulations impose a blanket mandatory duty on all restaurants meeting a standard definition such as operating 10 or more restaurants under the same name.”

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