Fed court upholds New York City's calorie-posting rule

In a victory for public health, a federal appeals court upheld a New York City ordinance requiring certain fast-food restaurant chains to post calorie counts on their menus and menu boards.

A panel of the 2nd U.S. Circuit Court of Appeals on Feb. 17 unanimously rejected protests from the restaurant industry that the city rule -- believed to be the first of its kind -- was pre-empted by federal regulations set by the Food and Drug Administration. Although restaurant food is exempt from federal nutritional labeling requirements, New York City, with its calorie-posting rule, "merely stepped into a sphere ... left open to state and local governments" to regulate public health and safety, Judge Rosemary S. Pooler wrote.

Judges also disagreed with the argument that the ordinance violated restaurants' free-speech rights, saying "the law in question mandates a simple factual disclosure of caloric information and is reasonably related to New York City's goals of combating obesity."

Physicians had urged the court to uphold the rule in a friend-of-the-court brief filed by the Medical Society of the State of New York, Litigation Center of the American Medical Association and State Medical Societies, and several other medical and public health groups. City officials said the decision will help encourage healthier lifestyles and set an example for other localities to follow.

"Consumers are learning more about the food before they order, and the market for healthier alternatives is growing," Thomas R. Frieden, MD, MPH, commissioner of New York City's Dept. of Health and Mental Hygiene, said in a statement.

Most restaurant chains have complied since enforcement began July 19, 2008, he said. The rule requires chain restaurants with 15 or more establishments nationally to prominently display calorie content on menus and menu boards. Fines for noncompliance range from $200 to $2,000 per violation.

Restaurants weigh appeal

The New York State Restaurant Assn., which challenged the ordinance, is considering its appeal options, which include a rehearing by the full 2nd Circuit or an appeal to the U.S. Supreme Court. President and CEO Rick J. Sampson said the association had hoped city officials would work with restaurants to implement a less costly and burdensome measure.

California, Philadelphia and Seattle have passed similar menu labeling requirements, according to the Center for Science in the Public Interest, a nutrition and food safety advocacy group. Other states and localities are considering similar bills.

The AMA in 2007 adopted several policies aimed at helping to reduce obesity, such as encouraging fast-food and chain restaurants to provide consumers with nutritional information for menu items, including calorie, fat, saturated fat, trans fat and sodium content. The AMA also supports the replacement of trans fats with healthier alternatives, and tailoring state and federal food assistance programs to meet recipients' health needs.