Calorie Information on Fast-Food Menus? Court Upholds NYC Menu Labeling Law
By: RICHARD J. WEGENER
February 24, 2009
A New York City law requiring “fast-food” restaurant chains with at least 15 stores to prominently post calorie information on menu boards is not preempted by the federal Nutrition Labeling and Education Act of 1990 (NLEA).
The Second Circuit Court of Appeals rejected the New York Restaurant Association’s challenge to NYC Health Code § 81.50, adopted in 2008. The court found that while Congress exempted restaurant food from the NLEA, the authority to require the posting of information like calorie amounts remained with local and state governments. The court also concluded that the New York City law did not violate restaurant chains’ First Amendment rights. N.Y. State Restaurant Ass’n v. NYC Bd. Of Health, No. 08-1892 (2d Cir. Feb. 17, 2009).
The case addresses whether calorie and nutritional information at restaurants count as NLEA nutrient content “claims” (to which preemption applies) or nutrition “information” (to which it does not). In general, claims consist of descriptions of a food’s quality (e.g. “heart healthy” claims). On the other hand, listings of calories and quantities of fats or carbohydrates are usually classified as “information.” Distinctions between the categories have blurred over the years as Congress and the FDA have issued confusing, and sometimes contradictory, rulings. The court concluded that calorie displays are more accurately termed “information,” and that federal law does not preempt states from legislating with respect to such information in restaurants.
Why does this matter? The ruling is significant for a number of reasons:
- It is a victory for those who believe mandatory disclosure of calorie information in fast food restaurants will help fight obesity.
- The decision brings to the surface a number of related philosophical inquires. Will menu disclosure laws help consumers to maximize their welfare, or do such laws merely mark the re-emergence of the “Nanny state?”
- Is it fair to adopt menu laws that target only fast-food restaurants as opposed to all restaurants and diners?
Perhaps more importantly is that the Second Circuit’s opinion will possibly feed the growth of similar local laws or proposals in various stages of consideration across the country. The prospect of restaurants having to adapt to a smorgasbord of local menu board requirements will lead to calls for Congressional action to insure uniform point-of-sale labeling of standard menu items. And we predict that legislators will not be satisfied with only calorie disclosures.