Frieden’s Next Plot
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
New Yorkers can bet their last enjoyable restaurant meal that Mayor Bloomberg’s commissioner of mental hygiene, Thomas Frieden, was up last night plotting how to get around the rebuke he got in federal court yesterday. At issue in the case was a regulation he’d rammed through requiring certain restaurants he didn’t like — certain of the big fast food restaurants — to post the calories of their hamburgers and French fries and the like on their menu boards. In response, the New York State Restaurant Association sued the city, arguing that both the First Amendment and federal law stood in the way of the city’s regulation. The federal judge in the case, Richard Holwell of the United States district court in Manhattan, concluded that Dr. Frieden had overstepped his authority by treading into an area of regulation reserved for the federal government. Call them Founders’ Fries.
Unfortunately, the judge then set about applying one of the worst laws in all of political economy — the law of unintended consequences. He recognized that Dr. Frieden’s basic core belief is that New Yorkers are too stupid to make their own decisions on what to eat. But he was troubled by the fact that Dr. Frieden’s regulation would have applied only to those restaurateurs who had already taken steps to announce the caloric value of each item. It required such companies, which included McDonalds, Burger King, and Subway, to repeat these numbers on their menu-displays. It prompted others to stop disclosing calories in the first place. It struck many as unfair for government to ask only businesses that have volunteered information on their own initiative, to volunteer it again but louder.
Judge Holwell, in his wisdom, suggested — in so many words — that Dr. Frieden go out and regulate not only the few fast foot behemoths that already disclose calories but enforce his rules on a vastly greater number of restaurants in the city. In other words, no matter how intimate the bistro you’re dining in, no matter how earnestly you’ve been dieting, no matter how big a celebration you are hoping to enjoy, agents of the department of mental hygiene are going to be prowling around to make sure the restaurant to which you’re giving your custom ruins the atmosphere. At some point, some court is going to make a point here about delegated powers and the role of government and the destructiveness of the health department’s meddling to other authorities, including parents.