Second Circuit Upholds NYC Regulation Mandating Calorie Disclosure in Restaurants

By Ricardo Carvajal

The Second Circuit Court of Appeals has rejected  the New York State Restaurant Association’s (NYSRA’s) challenge to a New York City Board of Health (NYC) regulation 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 appellate court held that NYC’s regulation is neither expressly preempted by the Nutrition Labeling and Education Act of 1990 (NLEA), nor does it violate the First Amendment.

In concluding that the NLEA does not expressly preempt NYC’s regulation, the court relied in part on FDA’s amicus curiae brief, to which the court granted deference under Skidmore v Swift & Co., 323 U.S. 134 (1944).  In disposing of NYSRA’s First Amendment challenge, the court found support for NYC’s regulation in a report commissioned by FDA that discusses the public health challenges posed by obesity, the apparent link between obesity and dining out, and the potential benefits of providing diners with calorie information.