How Many Calories Are in the Big Apple? Court to Decide Whether New York City’s Regulation of Calorie Information on Restaurant Menus is Preempted by the NLEA

The U.S. District Court for the Southern District of New York is expected to decide soon whether a New York City regulation requiring restaurants to post calorie content values on menus and menu boards is preempted by the Nutrition Labeling and Education Act of 1990 (“NLEA”), a federal statute.  The regulation, which was scheduled to take effect on July 1, 2007, applies to restaurants that make the calorie content information of standardized menu items publicly available.  In June, the New York State Restaurant Association (“NYSRA”) filed a complaint and a motion for declaratory relief and a preliminary injunction arguing that the regulation is preempted by the NLEA and asking that the court preclude New York City from violating the First Amendment rights of NYSRA members by impermissibly compelling speech.       

The NYSRA takes the position that calorie content values constitute “nutrient content claims” under the subsection of the NLEA that governs such claims.  The preemption provision applicable to that subsection prohibits states and local governments from enacting any law regarding nutrient content claims “made in the label or labeling of food that is not identical to the requirement of” that subsection.  NYSRA argues that the requirements imposed by the New York City regulation are not “identical” to those of federal law and therefore are preempted.  The City takes the view that because disclosure of a calorie content value does not involve a characterization of calorie levels, such disclosure does not constitute a nutrient content claim.  The City argues that the NLEA’s preemption provision applicable to nutrient content claims does not apply to the City’s regulatory requirements at issue.

The NYSRA also maintains that the City’s regulation violates the First Amendment by compelling restaurants to voice a point of view with which they disagree; namely, that calories are the only nutritional criterion that customers should consider when selecting menu items.  New York City responds that the reasonableness standard governs commercial speech and that its regulation at issue meets that standard because it is reasonably related to the city’s legitimate interest in curbing obesity. 

An amicus curiae brief was filed in support of the City by Rep. Henry Waxman (D-CA), former FDA Commissioner David Kessler, Public Citizen Litigation Group, Center for Science in the Public Interest, several medical and public health organizations, and several professors of medicine, nutrition, and public health.  The City and County of San Francisco also filed an amicus brief in support of New York City and is joined by several other cities and the National League of Cities.   

ADDITIONAL READING:

• National Restaurant Association State Menu Labeling Legislation

By Brian J. Wesoloski