Court Rebuffs Mayor’s Plan on Fast Food

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A federal court ruling that strikes down New York City’s requirement that fast food restaurants disclose calorie information on their menus will not prevent the city from trying to implement the policy in the coming months.

The ruling, handed down by Judge Richard Holwell in U.S. District Court in Manhattan yesterday, was limited and even provides the city with a blueprint for how to redraft the regulation so that it might pass legal review in the future.

The regulation, which has never been enforced, affected the 10% of the city’s 23,000 licensed restaurants that were providing calorie and other nutritional information on Web sites, on brochures, or on napkins. It required such restaurants to make sure customers were aware of the data at the time of purchase by including calorie counts on their menus as well.

There is no city regulation requiring restaurants to disclose nutritional information such as calories, although many fast food restaurants do. For fast food restaurants, where menus often are large lighted displays that can cover the whole wall, compliance could prove costly.

In the decision, Judge Holwell said the trouble with the regulation was that it applied only to those restaurants already volunteering information. The ruling did not suggest that this was unfair; only that federal law, rather than local statutes, regulates such voluntary disclosures.

The decision suggested that if the city were to require restaurants to disclose calorie levels, perhaps then it could also regulate how those businesses displayed the information.

The city is “free to enact mandatory disclosure requirements” the judge, who was nominated to the bench by President Bush, wrote in his decision.

So the city, which was ostensibly on the losing side of yesterday’s decision, claimed it as a win.

“While the interests of public health would have been better served if the calorie posting requirement could have been immediately implemented, we are pleased that the court recognized the city could still adopt this requirement,” a lawyer for the city, Mark Muschenheim, said in a statement.

The city’s commissioner of health and mental hygiene, Thomas Frieden, now can either appeal Judge Holwell’s decision or seek to amend the city’s health code to require restaurants to start disclosing calorie counts. The city could decide to require that information from all restaurants or only chain restaurants.

Any effort by the city to push the issue is likely to continue to be resisted by the New York State Restaurant Association, whose challenge to the original regulation prompted yesterday’s ruling.

The association has argued that restaurants have a First Amendment right to present information to their customers without city intrusion. That argument was not addressed in yesterday’s ruling, but is expected to come to the fore when the restaurant association challenges the city’s likely next move.

“This was a case of the government telling people who think a lot about how to communicate with their customers that we, the government, know best,” a lawyer for the restaurant association, Kent Yalowitz of Arnold & Porter LLP, said.

The regulation, which was adopted last year, is intended as a defense against the “obesity epidemic” sweeping the city, half of whose adults are overweight or obese, according to the city’s court filings.

The restaurant association, which challenged the regulation in federal court, has questioned whether caloric intake ought to be the centerpiece of the city’s effort to improve the health of diners.

So far, the Subway chain, which revamped menus in its New York locations this summer, is the only fast food restaurant to add calorie counts to menus in response to the law.

The city’s measure had attracted national attention. Legislation similar to the city’s regulation has been introduced this year in more than a dozen states as well as in the cities of Chicago, Philadelphia, and Washington, according to court documents.

A brief filed on behalf of San Francisco and other cities told the court: “New York is not alone in its conclusion that consumers should be provided with point of purchase access to nutritional information when eating out in order to help them make better informed choices involving their health and diet.”


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