Second Circuit upholds NYC law requiring restaurants to display calorie information

[JURIST] The US Court of Appeals for the Second Circuit [official website] upheld [text, PDF; NYC press release] Tuesday a New York City law that requires chain restaurants to post caloric content information on their menus and menu boards in an effort to address obesity rates. The court ruled that New York City Health Code Section 81.50 [NYC Health Department guide, PDF] is not preempted by the Nutrition Labeling and Education Act of 1990 [FDA backgrounder]. The court also declined to issue a motion for preliminary injunction in favor of the New York State Restaurant Association (NYSRA) [advocacy website], finding that the code provisions do not violate the First Amendment [text] rights of restaurant owners who "do not want to communicate to their customers that calorie amounts should be prioritized among other nutritional amounts." According to the court:

Congress intended to exempt restaurant food from the preemption sections that are necessary to allow food to be sold interstate. In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments. Furthermore, although the restaurants are protected by the Constitution when they engage in commercial speech, the First Amendment is not violated, where as here, 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.
President and chief executive of NYSRA Rick Sampson said the association would consider appealing the decision.

Enforcement of the law began in July 2008. The provision was a revised version that reflected a September 2007 district court ruling that existing federal law foreclosed the city's ability to establish its own requirements, but that local governments could mandate that either all restaurants or a defined group of restaurants post calorie information. Litigation over the current form of the health provisions has been going on since early 2008. In April, the US District Court for the Southern District of New York [official website] ruled [opinion, PDF] in favor of New York City. The regulations affect roughly ten percent of NYC restaurants. Philadelphia, Seattle, and California have since passed similar regulations.

 

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