New York City wants calories put on menus

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted Sept. 10, 2007.

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Should a McDonald's restaurant in New York City be forced to inform its customers that a Big Mac has 540 calories by posting that number on the menu board along with the sandwich's price?

That question is at the heart of a lawsuit the New York State Restaurant Assn. filed after the city used its regulatory powers to require restaurants that have already made public the number of calories in standardized menu items to take the next step and make that number "readily available" to consumers as they choose food items.

The city enacted the regulation because "an obesity epidemic threatens the health of New Yorkers" who are now consuming more food at restaurants exempt from the mandatory federal nutrition disclosure requirements, according to court documents.

The restaurant association has asked a judge with the U.S. District Court for the Southern District of New York to stop the city from enforcing the regulation, which was slated to take effect on July 1. The judge has forbidden the city from enforcing the regulation until at least Oct. 1, while the lawsuit, New York State Restaurant Assn. v. New York City Board of Health, et al., makes its way through the courts.

Both sides acknowledge that the regulation will affect only about 10% of the city's restaurants. But, judging from the number of people and organizations that have filed friend-of-the-court briefs supporting the city, a ruling against New York could have far-reaching implications.

The regulation is reportedly the only one of its kind in the country, but 14 states and three major cities have introduced legislation similar to New York City's requirement, according to a friend-of-the court brief supporting the city's move, filed by the National League of Cities, the National Assn. of County and City Health Officials, and several individual counties, municipalities and elected officials. A ruling in favor of the restaurant association would likely influence the debate on any legislation pending in statehouses and municipalities.

A group of medical and public health organizations -- including the American Medical Association -- also filed a brief supporting the disclosure.

The groups noted in their filingthat obesity has become a public health crisis of epidemic proportions. In addition, in June the AMA resolved that calorie content, in addition to other nutritional information, be displayed on menus and menu boards in fast-food restaurants and other chain restaurants, according to the brief the AMA and the other organizations filed.

Can states step in?

The state restaurant association makes two arguments against the requirement that restaurants prominently display nutritional information. First, it says that the Nutritional Labeling and Education Act of 1990 preempts the regulation. The association's interpretation is that the federal law forbids states and municipalities from establishing any requirement that is "not identical to" the act that the FDA interprets and enforces. Second, the association argues that forcing the restaurants to communicate nutritional information in this way violates the First Amendment rights of its members.

In addition, the association says that the regulation will not help fight the obesity epidemic because restaurants can remove all their nutrition information from public display and then not have to place the information on menu boards. The New York Times reported on March 2 that Wendy's had intentionally pulled nutrition posters from its restaurants because the regulation applied to restaurants that voluntarily provided the information on or after March 1.

New York City and groups that have filed friend-of-the-court briefs on the city's behalf, argue that the federal nutritional labeling act leaves plenty of room for states and municipalities to make and enforce regulations such as this one under their historical "police powers" used to protect the health and safety of their residents. They also say that the regulation does not chill free speech under the U.S. Supreme Court case law formulated regarding commercial speech and the First Amendment.

The federal act imposes mandatory food labeling requirements for packaged foods and gives the FDA regulatory authority over claims voluntarily made on labels or labeling that either make nutrient content claims or "characterize the relationship of any nutrient to a disease or health-related condition (known as health claims)." With few exceptions, when these claims are made, they must be made using terms defined by the FDA.

Restaurants are wholly exempt from the mandatory labeling requirements, the state restaurant association maintains. But they are not exempt from the requirements for nutrient content claims they voluntarily make. The association argues that restaurants that disclose nutrient information about menu items through food labeling, such as billboards, brochures in restaurants and restaurant Web sites, are making "claims" subject to the federal nutritional food labeling act's "food labeling regime."

In their brief, Public Citizen, the AMA, the American Public Health Assn. and others say that New York City's rule has nothing to do with such "claims." Restaurants in New York remain free to make descriptive claims as long as they comply with federal law.

They argue that when Congress exempted restaurants from the act, it did not create a "permanent regulatory vacuum" and that legislative history indicates legislators meant for states and municipalities to step in.

The New York City rule is "concerned only with purely factual information, not with descriptive 'terms' that restaurants may use to make 'claims' that 'characterize' the nutrients of their food," (for example when a restaurant claims a dish is low fat), the brief states.

The rule "neither prevents restaurants from making, nor requires them to make, nor limits the circumstances under which they may make, descriptive claims characterizing the nutrient content or health effect of their food."

A contrary conclusion, they argue, "would lead to absurd results and eviscerate the exception that Congress created for state regulation of restaurant nutrition labeling."

Public Citizen, the AMA and others also say that the FDA has consistently interpreted the law to allow states to require restaurant foods to bear nutritional requirements.

A matter of free speech?

The restaurant association also claims, according to court documents, that the regulation is "compelled speech," which, like bans on speech, "violate the fundamental rule of protection under the First Amendment, namely that a speaker has the autonomy to choose the content of his own message" and that the protection against compelled speech also extends to commercial speech.

But, Public Citizen, the AMA and others say in their brief that Supreme Court doctrine in this area has "consistently observed a constitutional presumption that favors disclosure over concealment because disclosure furthers, rather than hinders First Amendment values that include protection of the robust and free flow of accurate information, which is the principle First Amendment justification for protecting commercial speech."

In addition, they argue, the First Amendment guarantee of freedom from compelled speech is not absolute. "Particularly in the commercial arena, the Constitution permits the State to require speakers to express certain messages without their consent, the most prominent examples being warning and nutritional information labels," the brief states.

Oral arguments were heard on July 25. The judge had not issued a ruling by AMNews press time in late August. However, attorneys involved with the case said they expect a ruling soon, because the restaurant association is asking for an injunction to keep the city from enforcing the regulation when it is slated to go into effect in October.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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