How Many Calories Are in the Big Apple (Part II)? – District Court Rules that New York City’s Regulation of Calorie Information on Restaurant Menus is Preempted by the NLEA

Last month we reported on a highly anticipated ruling in a case concerning whether a New York City health code 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”).  The NLEA, among other things, amended the FDC Act to provide that most foods sold in retail food stores are to be deemed “misbranded” unless they carry certain specified nutritional information on their labels, and also regulates the making of food claims.   

Yesterday, the U.S. District Court for the Southern District of New York ruled in favor of the New York State Restaurant Association (“NYSRA”) and permanently enjoined New York City from enforcing the regulation.  (Although NYSRA’s complaint also raised First Amendment concerns, the court did not address this issue, because the court found the regulation to be preempted by federal law.)

In his 21-page opinion granting summary judgment, Judge Richard J. Holwell reasoned that the voluntary disclosure of calorie content information by restaurants that triggers the New York City regulation may be a “claim” under FDC Act § 403(r). As such, the court then considered whether the regulation was preempted by FDC Act § 403A(a)(5), which states:

[N]o State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce . . . any requirement respecting any claim of the type described in [FDC Act § 403(r)(1)] made in the label or labeling of food that is not identical to the requirement of [FDC Act § 403(r)(1)], except a requirement respecting a claim made in the label or labeling of food which is exempt under section [FDC Act § 403(r)(5)(B)].

In ruling in NYSRA’s favor, Judge Holwell concluded:

[T]he mandatory aspect of [the New York City regulation] operates in precisely the same manner as [FDC Act § 403(r)] and its implementing regulations. If a food purveyor chooses to make a nutrient content claim, then it is subjected to mandatory regulations under [FDC Act § 403(r)] regarding the nature and content of its voluntary claim. Likewise, if a restaurant chooses to make calorie content information available, then it is subjected to a mandatory requirement under [the New York City regulation] of posting such information on menu boards and menus.  By making its requirements contingent on a voluntary claim, [the New York City regulation] directly implicates [FDC Act § 403(r)] and its corresponding preemption provision.  New York City, although free to enact mandatory disclosure requirements of the nature sanctioned by [FDC Act § 403(q)] (and proposed or enacted in other jurisdictions), has adopted a regulatory approach that puts it in the heartland of [FDC Act § 403(r)] and has subjected its regulation to preemption under [FDC Act 403A(a)(5)].

It is unclear at this time whether the New York City Board of Health will appeal the decision.  We will continue to update you as we learn more information.