NEW YORK The city's Department of Health and Mental Hygiene characterized yesterday's federal court dismissal of the agency's controversial menu-labeling rule as a temporary setback that would keep calorie information off local menus for just "a few months."
"The health department is considering all legal and regulatory options," the agency said, asserting in a statement that the law was dismissed on a "technicality."
The reaction suggests that the health department may attempt to reinstate the provision by requiring chain restaurants to provide nutritional information, instead of mandating that ones that voluntarily make the data available via websites or brochures also post calorie counts on menus and menu boards.
U.S. District Court Judge Richard J. Holwell said he overturned the limited menu-labeling law because it conflicted with federal regulations on nutritional disclosure. In essence, he said the city impinged on federal rules by trying to regulate the voluntary actions of restaurateurs. If the city had required restaurants to disclose calorie counts in the first place, Holwell said in his 21-page decision, it could then have regulated how the information is displayed. The ruling stated that the city is “free to erect mandatory disclosure requirements.”
The New York City measure was believed to be the first menu-labeling mandate in the nation. It has since been copied by King County, Wash. Officials of the Washington Restaurant Association have already voiced an expectation that the decision in New York would increase the chances of overturning the King County law.
Meanwhile, 14 states are considering labeling legislation. On Monday, the California State Assembly approved a bill that would require fast-food restaurants and chains to provide nutrition information at the point of purchase. A different version of the bill has already been approved by the state Senate.
The New York State Restaurant Association had filed a lawsuit challenging the regulation, which was promulgated by the health department rather than passed by the city council. The association argued that the board had overstepped its authority in issuing such a mandate.
Other opponents had apparently argued that the rule violated restaurateurs' First Amendment right to free speech. The city’s provision was binding solely on those restaurants that already provide nutrition information, such as in brochures or on websites. Challengers argued that the law discriminated against those places, in effect punishing them for what they chose to disseminate.
In its statement, the health department blasted the NYSRA for challenging the measure.
"It is unfortunate that some restaurants are so ashamed of what they are serving that they would rather go to court than post calorie information where their customers can actually use it," the agency said.
Holwell stated in his ruling that enforcement of the law would have affected the 10 percent of licensed restaurant operators in the city that voluntarily have “chosen to disclose calorie content information to their customers.”
The decision drew praise from restaurant industry officials.
"We are encouraged by and appreciative of [Tuesday's] court decision," said Peter Kilgore, acting president and chief executive of the Washington-based National Restaurant Association. "This decision highlights some of the flaws in the New York City Board of Health's regulation, which would have attempted to punish the very restaurants that are already providing accurate and comprehensive nutrition information to customers in convenient ways, both in the restaurant and on the Web."
"We have always believed that the New York City Board of Health’s regulation flies in the face of common sense," said Jack Whipple, president of the Washington-based National Council of Chain Restaurants. "We applaud the judge for recognizing that chain restaurants that have been providing this information voluntarily for years should not be required to highlight only some nutritional information that the city deems most important."
The law did not cite chain restaurants as its target, but places affiliated with a large national network would be the most likely to have a breakdown of calories for their various menu items.
The measure took effect July 1, but civic authorities had said they would not enforce the requirement for three months. They subsequently announced that enforcement would be delayed until further notice because of the NYSRA lawsuit. Violators could have been fined $200 to $2,000.
Several national restaurant chains, including McDonald’s, Wendy’s, Burger King, White Castle and Quiznos, said earlier this summer that they had no immediate plans to comply with the menu-labeling mandate. Many argued that menu boards that listed the required information would be difficult for customers to read.
Irwin Kruger, whose company, ISK Manhattan Inc., operates seven franchised McDonald’s outlets in Manhattan, told Nation’s Restaurant News in June that his restaurants would not be in compliance by the initial July 1 deadline.
“We have nothing to hide,” Kruger said. “We’re happy to provide nutritional information in the stores in brochures or on the Web. That’s nothing new for us. But this recent demand [to add calorie counts to menu boards] is not practical and serves no purpose. It’s clearly impossible for us to list that much information on menu boards.”
One of few restaurant chains to comply, Milford, Conn.-based Subway unveiled new menu boards this summer that listed specific calorie counts for its 6-inch subs and calorie ranges for its foot-long sandwiches.
Other states considering menu-labeling legislation include Arizona, California, Connecticut, Hawaii, Illinois, Maine, Massachusetts, Michigan, New Jersey, New Mexico, New York, Pennsylvania, Tennessee and Vermont.
