2nd Circuit OKs NYC’s calories-on-menus law

Wednesday, February 18, 2009

NEW YORK — A federal appeals court yesterday upheld a city rule requiring some chain restaurants to post calories prominently on menus, saying the first measure of its kind in the nation is a reasonable bid to curb obesity.

A 2nd U.S. Circuit Court of Appeals panel rejected a state trade group’s arguments that federal law pre-empted the rule and that the city violated the First Amendment by forcing on restaurant patrons a view that calories are the most important consideration on a menu.

The three-judge panel ruled in New York State Restaurant Association v. New York City Board of Health that the federal Nutrition Labeling and Education Act was not intended to apply to restaurant food, writing that the city “merely stepped into a sphere that Congress intentionally left open to state and local governments.”

The calorie rule, the court wrote, “mandates a simple factual disclosure of caloric information and is reasonably related to New York City’s goals of combating obesity.”

The court cited research showing consumers typically can’t assess how many calories are in food, “a statement which we do not doubt upon being informed … that a smoked turkey sandwich at Chili’s contains 930 calories, more than a sirloin steak, which contains 540, or that two jelly-filled doughnuts at Dunkin’ Donuts have fewer calories than a sesame bagel with cream cheese.”

The decision keeps the regulation in effect; it has been enforced since last July. The city’s rule applies to restaurants that are part of chains with at least 15 outlets across the country.

Health Commissioner Thomas R. Frieden said yesterday that most chain restaurants have complied. He has said the rule could prevent 150,000 New Yorkers from becoming obese in a city where more than half of residents are overweight or obese.

“Consumers are learning more about the food before they order, and the market for healthier alternatives is growing,” he said. “We applaud the court for its decision, and we thank the restaurant industry for living by the rules. New Yorkers will be healthier for it.”

Rick Sampson, president of the New York State Restaurant Association, said the group was considering an appeal. It represents 7,000 eateries.

Sampson said business has been down at most restaurants since the calorie regulation took effect, but he said much of the decline likely stems from the national recession.

A similar regulation went into effect this month in King County, Wash., which includes Seattle. California will begin requiring its chains to post caloric information next year, but they will be able to provide the information on preprinted brochures or menus until 2011, when the listings will have to be on their menus.

Philadelphia passed a stricter regulation that, beginning next year, will require chains to disclose calories and the amount of saturated fat, trans fat, carbohydrates and sodium in their meals.

Scott Vinson, vice president of the National Council of Chain Restaurants, said chains want to disclose nutritional information, but the multiple state and city rules are confusing.

“We would prefer a uniform national standard, so that they don’t have to deal with potentially hundreds of different local, county, state regulations on menu labeling,” Vinson said.

A bill introduced in Congress last fall would require calorie counts on menus in national chains with 20 or more outlets in the U.S. Fast-food restaurants would need to post the calorie counts on menu boards, while sit-down restaurants could list the information in an insert or at the end of the menu.

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