A fast-food industry group filed two lawsuits challening New York City's landmark regulation requiring fast-food restaurants to post calorie information on their menus. The industry argued that the regulation was preempted by federal law and violated the First Amendment.
In both cases, Public Citizen filed briefs and presented oral argument in support of the regulation, arguing that it was not preempted because it fills a regulatory gap that Congress intentionally left open to states when it passed the Nutrition Labeling and Education Act (NLEA) in 1990. The NLEA requires nutrition labeling on packaged food but exempts restaurants.
Public Citizen's briefing was joined by a distinguished list of individuals and organizations, including Congressman Henry Waxman (D-CA), who was the NLEA's chief sponsor; David Kessler, MD, who was Commissioner of the FDA at the time the NLEA and its regulations were implemented; the Center for Science in the Public Interest, which played an instrumental role in getting both the NLEA and the New York City rule enacted; the American Medical Association, the American Public Health Association, the American Diabetes Association; and a host of prestigious health and medical organizations and distinguished professors of medicine, nutrition, and public health.
In the first lawsuit, filed in 2007, federal judge Richard J. Holwell ruled that an earlier version of the city’s calorie rule was preempted by federal law because it applied only to restaurants that already made nutrition information public. But the judge also ruled that the city was free to require fast food restaurants to disclose calorie counts,as long as it redrafted its rule to apply to all chain restaurants (defined as restaurants with 15 or more restaurants nationally).
In the second lawsuit, the case went back before the same judge, who agreed with our arguments against the restaurant industry's constitutional challenges. The industry then took an appeal and the U.S. Court of Appeals for the Second Circuit affirmed the lower court's decision. New York's rule remains in effect and has become a model for similar state and local laws throughout the country. Public Citizen is also working with public health advocates on legislation that would implement menu labeling at the federal level.
To read the article in the ABA Journal, click here.