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New York City’s Fast-Food Calorie Labeling Rule Should Be Upheld, Groups Urge Federal Court

July 16, 2007

New York City’s Fast-Food Calorie Labeling Rule Should Be Upheld, Groups Urge Federal Court

Congressman, Former FDA Commissioner, AMA, Public Health Organizations and Experts Join Public Citizen and CSPI in Support of Rule to Combat Obesity Epidemic

WASHINGTON, D.C. – A federal court in New York should reject the state restaurant association’s attempt to strike down New York City’s new requirement that certain fast-food and other chain restaurants disclose calorie information on their menus, according to a brief submitted today by the nonprofit organizations Public Citizen and the Center for Science in the Public Interest (CSPI). The groups were joined in their brief by Rep. Henry Waxman (D-Calif.), a former FDA commissioner and a host of prestigious public health organizations and esteemed nutrition experts.

The organizations filed a friend of the court brief in the U.S. District Court for the Southern District of New York supporting New York City’s Board of Health against a lawsuit filed in June by the New York State Restaurant Association. The association challenged the city’s groundbreaking new menu labeling ordinance that went into effect July 1. The measure is designed to provide consumers with calories on fast-food menu boards and on printed menus. The rule only applies to restaurants that already publicly disclose the information in some form, such as on their Web sites.

The New York State Restaurant Association claims that the city’s ordinance is preempted by federal law and that it violates the First Amendment. Public Citizen and CSPI contend that federal law does not preempt the New York City rule because city authorities stepped into a regulatory gap that Congress intentionally left open to state and local governments when it enacted the Nutrition Labeling and Education Act (NLEA) in 1990. The NLEA requires food manufacturers to provide nutritional information on nearly all packaged foods, but explicitly exempts restaurants.

The chief sponsors of the NLEA in the U.S. Senate and House of Representatives, former Sen. Howard Metzenbaum (D-Ohio) and Rep. Waxman, have both said that the legislation was intended to allow state or local authorities to institute their own nutrition labeling requirements for restaurants. The U.S. Food and Drug Administration (FDA) has echoed this view, as did the U.S. District Court for the Southern District of New York in a 2003 decision. 

The Public Citizen-CSPI brief is signed by a distinguished list of organizations and experts, including Rep. Waxman, David A. Kessler, MD, who was FDA commissioner when NLEA was signed into law and its key regulations were implemented, the American Medical Association, the American Public Health Association, the American Diabetes Association, the California Center for Public Health Advocacy, the Medical Society of the State of New York, the Trust for America’s Health and professors of nutrition and public health Richard J. Decklebaum of Columbia University, Alice H. Lichtenstein of Tufts University, Marion Nestle of New York University, Barry Popkin of the University of North Carolina, Penny Kris-Etherton of Penn State University, Francine R. Kaufman of the University of Southern California Medical School and Walter Willett and George Blackburn of Harvard University. Separately, the San Francisco City Attorney’s office, joined by several other local governments, also filed an amicus brief opposing the restaurant industry’s lawsuit against New York City.

American adults and children consume about one-third of their calories from restaurants and other food-service establishments, and studies link frequent eating out with obesity and higher caloric intakes. Without nutrition information, it is difficult for consumers to make informed choices. In requiring fast-food restaurants to disclose calorie information on their menus, New York City has taken the lead in addressing one of the largest contributors to the nation’s obesity epidemic. The U.S. Surgeon General and the National Academies’ Institute of Medicine have also recommended that chain restaurants provide more nutrition information.

“The New York Restaurant Association should visit any Subway restaurant in New York City to see just how easy it is to present calories on menu boards,” said Margo G. Wootan, director of nutrition policy at CSPI. “The restaurant industry isn’t concerned about defending the First Amendment, as its lawsuit laughably claims. It just wants to keep its customers in the dark. People need nutrition information to exercise personal responsibility and to feed their children healthy diets.”

“The stakes in this lawsuit are high,” said Deepak Gupta, a lawyer at Public Citizen who wrote the brief. “A victory for New York City’s law could help clear the way for similar laws throughout the country.”

More than 20 states, cities and counties are considering legislation or regulations that would require fast-food and other chain restaurants to provide calories and other nutrition information on menus and menu boards. According to CSPI, menu labeling bills or regulations have been introduced this year in state legislatures in Arizona, California, Connecticut, Hawaii, Illinois, Maine, Massachusetts, Michigan, New Mexico, New Jersey, New York, Pennsylvania, Tennessee and Vermont. Local jurisdictions considering similar measures include Washington, D.C.; Chicago; Philadelphia; King County, Wash.; Montgomery County, Md.; and Nassau County, NY.

READ the brief and other materials.