Menu labeling could heat up, with a little help from FDA.

FDA has filed an amicus curiae brief with the Second Circuit Court of Appeals that supports a New York City (“NYC”) law requiring all menu boards and menus in chain restaurants with 15 or more establishments nationally to bear calorie content information for each menu item.  The case is New York State Restaurant Association v. New York City Board of Health, Docket No. 08-1892-cv.  Oral argument in the case is scheduled for mid-June.  The NYC law is one of several similar local laws or proposals in various stages of consideration across the country.  FDA’s support for the NYC law could lend a boost to similar measures elsewhere.

In its brief, FDA takes the position that the NYC law is not expressly preempted by the Nutrition Labeling and Education Act of 1990 (“NLEA”) because it compels the disclosure of “information that is properly included in required nutrition labeling” and does not constitute a nutrient content claim.  FDA also takes the position that the NYC law does not violate the First Amendment because it compels “an accurate, purely factual disclosure… and addresses a legitimate state interest in preventing or reducing obesity among its citizens by making accurate calorie information available to consumers.” 

The possibility of having to adapt to a patchwork quilt of local menu labeling requirements may yet prompt support by industry for federal menu labeling legislation. The Menu Education and Labeling (“MEAL”) Act, introduced by Representative Rosa DeLauro in October 2007, would require that menus disclose next to the name of the food the number of calories, grams of saturated fat plus trans fat, and milligrams of sodium contained in a standard serving of the food.  Menu boards would have to disclose the number of calories per serving.  However, the MEAL act, as proposed, would not preempt state or local requirements mandating disclosure of additional nutrition information.

By Ricardo Carvajal and Diane McColl