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New York City’s Revised Calorie Disclosure Rule Should Be Upheld, Groups Urge Federal Cour

Feb. 12, 2008

New York City’s Revised Calorie Disclosure Rule Should Be Upheld, Groups Urge Federal Court

Congressman, 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 uphold New York City’s requirement that chain restaurants disclose calorie information on their menus, according to a brief submitted yesterday by Public Citizen and the Center for Science in the Public Interest (CSPI). The nonprofit organizations, joined by Rep. Henry Waxman (D-Calif.) and several leading health groups, filed the brief in the U.S. District Court for the Southern District of New York in response to a lawsuit filed last week by the New York State Restaurant Association.

The lawsuit is the restaurant association’s second attempt to strike down New York City’s calorie disclosure rule. In the previous suit, filed last year, federal Judge Richard J. Holwell ruled that an earlier version of the city’s calorie disclosure rule was pre-empted by federal law because it applied only to restaurants that already made nutrition information available to the 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.

The case is now back before the same judge. The new rule, which applies to all chains (defined as restaurants with 15 or more restaurants nationally), addresses the judge’s concerns and avoids conflicting with federal law. Chains must comply by March 31.

“The restaurant association’s legal strategy appears to have backfired,” said Deepak Gupta, a lawyer at Public Citizen who wrote the brief. “It complained that the rule was too narrow, so the city made it broader. And now the association is complaining that it’s too broad.”

The restaurant association is again claiming that the city’s rule is pre-empted by federal law and violates the First Amendment. Public Citizen and CSPI contend that federal law does not pre-empt 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 Waxman, have 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 has echoed this view.

The Public Citizen-CSPI brief is signed by a distinguished list of organizations and experts, including Waxman, the American Diabetes Association, the American Medical Association, the American Public Health Association, the California Center for Public Health Advocacy, the Medical Society of the State of New York, the Trust for America’s Health and several of the nation’s leading professors of nutrition and public health.

American adults and children consume about a 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 also have recommended that chain restaurants provide more nutrition information.

“It’s a shame that the chain restaurant industry is bringing a meritless legal challenge in an attempt to deprive consumers of valuable information,” said CSPI nutrition policy director Margo G. Wootan. “It shows total disregard for consumers and displays a lack of confidence in their own menus. Like food manufacturers who fought nutrition labeling 20 years ago, restaurant chains are just on the wrong side of history. Good for Subway for showing how easy it is to put calories on menu boards.”

Subway and Auntie Anne’s have been using menus with calories since last summer when New York City’s first menu labeling regulations were to take effect. Philadelphia, San Francisco, Maryland’s Montgomery County, New York’s Nassau and Westchester Counties, and Oregon’s Multnomah County, which includes Portland, are working on menu labeling proposals this year.

READ the brief and other materials.