There has recently been a considerable amount of press coverage of regulations requiring that restaurants post nutritional information on menus and menu boards. New York City is the first city to have passed such a regulation, though not without incident.
Foodfacts Blog editors reviewed an interesting article posted by Emily Whelan Parento on the First Movers Blogspot site. Emily notes that New York passed its first menu labeling regulation (amending Health Code § 81.50) in December 2006. However, the New York State Restaurant Association successfully challenged the regulation on preemption grounds. On September 11, 2007, Judge Howell (S.D.N.Y.) granted the NYSRA’s motion for partial summary judgment, striking down the regulation on the grounds that it was expressly preempted by the Nutrition Labeling and Education Act of 1990 (NLEA) because it applied only to restaurants that had voluntarily provided calorie information, rather than simply requiring all chain restaurants to post calorie information. New York State Restaurant Assoc. v. New York City Board of Health, No. 07 Civ. 5710 (S.D.N.Y. Sept. 11, 2007).
New York redrafted its menu labeling regulations and adopted a revised §81.50 in January 2008. The revised regulations require food-service establishments that are part of a chain of 15 or more restaurants nationally to list calories for standard menu items on menu boards, menus, or food item display tags. The font and format used for calorie information must be at least as prominent in size as is used for the name or price of the menu item. The NYSRA immediately challenged the new regulations on preemption and First Amendment grounds (under a compelled speech theory). However, Judge Howell upheld the new regulations in April 2008, ruling that the new regulations are not preempted by federal law and do not infringe on restaurants’ First Amendment rights. Although the NYSRA requested a stay of enforcement pending appeal, Judge Howell denied the request, as did the Second Circuit, and enforcement began in May 2008 (though fines were not issued until July 2008). Supporting New York City in the appeal were a number of public interest groups, including, to name just a few, Public Citizen, U.S. Congressman Henry Waxman, Former FDA Commissioner David Kessler, Center for Science in the Public Interest, American College of Preventive Medicine, American Diabetes Association, American Medical Association, American Public Health Association, and many other leading public health groups and academic experts.
The Second Circuit upheld the revised regulation earlier this week, in an opinion written by Judge Rosemary Pooler. New York State Restaurant Assoc. v. New York City Board of Health, No. 08-1892-cv (2d Cir. Feb. 17, 2009) (Decision available at http://www.citizen.org/documents/NYSRAOpinion.pdf). Rejecting the NYSRA’s preemption argument, the court explained: “In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments.” In assessing the NYSRA’s First Amendment arguments under a rational basis standard, the Court pointed to research concluding that eating out is a major contributor to obesity. Moreover, the Court cited studies showing that consumers are typically unable to accurately assess the caloric content of foods (perhaps because of the “health halo”?) – “a statement which we do not doubt upon being informed, counter-intuitively, that a smoked turkey sandwich at Chili’s contains 930 calories, more than a sirloin steak, which contains 540, or that 2 jelly-filled doughnuts at Dunkin’ Donuts have fewer calories than a sesame bagel with cream cheese.”
New York is not the only city that has mandated menu labeling in recent years. Many jurisdictions have followed suit, including the state of California, King County, Washington (Seattle), Multnomah County, Oregon (Portland), Philadelphia, Westchester County, New York, and most recently (less than three weeks ago), Suffolk County, New York.
Suffolk County’s menu labeling bill, which is modeled after New York City’s, passed 17-1, which may indicate that these types of bills are becoming less controversial in certain regions of the country. Suffolk County lawmakers stated that they hope that making available more nutritional information will help consumers make healthier decisions. The lawmakers used Starbucks as an example: a grande Caffe’ Latte has 130 calories, but a venti Strawberry Crème Frappuccino has a whopping 750 calories. It remains to be seen whether providing this information on a menu will actually lead consumers to choose lower calorie options, although the New York City Department of Health projected that menu labeling in the City will prevent at least 30,000 new cases of diabetes over the next five years.
In September 2008, California became the first state to pass a menu labeling regulation, although its bill is less widely applicable than New York City’s law and will not be fully effective until January 2011. Under the California law, which supersedes any existing or future local ordinances, restaurants that have twenty or more locations in California must post calorie information for all standard menu items on menus, menu boards, and food display tags. The bill does not require nutrition information at grocery stores, for items on the menu for less than 180 days, alcoholic beverages, or self-service items at salad bars or buffet lines. Although the bill is less widely applicable than New York City’s regulation, which applies to any restaurant with fifteen or more locations nationwide, California lawmakers expect that the provision of nutrition information will result in significant positive health effects for the state, including the prevention of up to 38.9% of weight gain. See here for more details.
Although a menu labeling bill wasn’t terribly surprising coming from California, which is generally more health conscious than the rest of the country, it was quite a surprise to see the aggressive approach taken by Philadelphia, home of the cheesesteak. In November 2008, Philadelphia passed what is currently the strictest menu labeling regulation in the country. The bill, which will be effective in January 2010, requires restaurants with more than 15 outlets nationwide to disclose calories on menu boards, AND calories, saturated and trans fat, sodium and carbohydrates on printed menus. It will be extremely interesting to see how this bill will impact sales at sit-down chain restaurants known for delivering caloric wallops, since those establishments have had no nutritional disclosure obligations until now and have thus (predictably) provided minimal to no nutritional information.
Source: Emily Whelan Parento via First Movers.Blogspot