SAN FRANCISCO The California Restaurant Association has filed a lawsuit in federal court that seeks to stop San Francisco from requiring certain chain restaurants to post nutrition information starting in September. The association argues that the mandate is pre-empted by federal and state laws and that it violates restaurateurs’ First Amendment right to free speech by compelling them to issue certain information.
Adopted unanimously in March, the ordinance will apply to chains with at least 20 units statewide, requiring them to display the calorie, fat, carbohydrate and sodium content of standard menu items on menus, menu boards or posters.
The action, filed in U.S. District Court for the Northern District of California in San Francisco, aims to avert a patchwork of local menu-labeling requirements. California's Santa Clara County also has approved a nutrition-disclosure mandate.
The CRA has said it would prefer a single statewide labeling requirement. The association is backing a bill currently before the state Senate Appropriations Committee that would give restaurants more flexibility than the San Francisco and Santa Clara measures provide in how nutrition information is disseminated.
“The lawsuit is part of the California Restaurant Association’s commitment to establishing a statewide standard for nutritional information disclosure that allows restaurants some flexibility in determining the best way to provide their customers with nutritional information,” said Jot Condie, the CRA’s president. “A patchwork of local ordinances would be challenging and confusing for restaurants and their customers.”
The group’s challenge of the San Francisco measure is based in part on federal pre-emption, or the exclusive authority of the U.S. Food and Drug Administration to regulate nutrition matters. The New York State Restaurant Association had posed that argument in a lawsuit challenging a labeling law now in effect within New York City. However, the FDA submitted a friend-of-the-court brief in that action, asserting the New York law was constitutional because it addresses the legitimate public health concern of obesity and merely mandates the disclosure of facts. The FDA in effect said that it only has regulatory authority over restaurants if health claims are asserted.
The 2nd U.S. Circuit Court of Appeals has yet to decide on the NYSRA’s assertion that the New York law is unconstitutional because it compels speech.
Dennis Herrera, the attorney for the city of San Francisco, vowed a “lean, aggressive defense” against the CRA’s actions, describing the civil complaint and related filings as “nearly as bloated as Burger King’s Triple Whopper Sandwich with Cheese (1,230 calories, 82 grams of fat).”
“I think it’s outrageous that fat-peddling chain restaurants are asserting a First Amendment right to keep consumers uninformed about the nutritional contents of their menu items,” said Herrera in a statement. “At a time when public health departments are grappling with the grievous consequences of obesity, diabetes and other serious health problems, cities like San Francisco are justified to take steps that enable residents to make healthier choices.”
