Indiana Joins NYC’s Efforts to Combat Obesity; House Passes Menu Labeling Bill

By Cassandra A. Soltis –      

The Indiana Senate is currently reviewing House Bill No. 1207, passed by the House on February 25, 2009, which would require food establishments having 20 or more locations in Indiana to post both calorie and carbohydrate information “in a manner that allows consumers to consider the information when selecting an item or unit of food.”  H.B. 1207, 116th Gen. Assem., Reg. Sess. (Ind. 2009).  The bill would also require such establishments to make available to customers the amount of calories, fat, saturated fat, trans fat, cholesterol, sodium, carbohydrates, fiber, sugars, and protein in each food item.  In contrast, New York City’s ("NYC’s") menu labeling regulation requires only that calorie information be placed on all menu boards and similar displays.  In addition, NYC’s regulation covers restaurants with 15 or more establishments nationally.

Although some restaurants claim to provide nutrition information voluntarily at the point of purchase or when requested by consumers, many restaurants fail to have such information available, as the movie “Super Size Me” revealed.  NYC’s regulation and Indiana’s bill, if passed, have penalties for food establishments that do not comply with the nutrition information requirements.  (NYC can assess fines between $200 and $2,000; Indiana’s bill proposes a penalty of up to $1,000 for each violation per day.)   

If House Bill 1207 is passed, any challenge to the law would have to consider the outcome of New York State Restaurant Association v. New York City Board of Health, No. 08-1892-cv, 2009 U.S. App. LEXIS 2905 (2nd Cir. 2009), which, as we previously reported, upheld the NYC regulation to challenges on both federal preemption and First Amendment grounds.  Specifically, the court found that the Nutrition Labeling and Education Act of 1990 does not expressly preempt NYC’s regulation, and that the purpose of the regulation – to help address the obesity epidemic and its concomitant diseases – and the means used to achieve that purpose were reasonable.  

According to the Centers for Disease Control and Prevention ("CDC"), Indiana’s obesity rate for 2007 was 26.8%.  It is one of 30 states that had an obesity rate greater than 25%, with Alabama, Mississippi, and Tennessee having a prevalence of obesity equal to or greater than 30%.  Visit the CDC’s website here to view slides that show a significant increase in obesity rates since 1985.