West Case Update

City May Require Restaurants to List Calorie Content of Food Sold

Description
Appeals court held that a New York City regulation requiring certain restaurants to list the calorie content of all items on their menu was rationally related to concern about obesity and did not conflict with federal nutrition labeling requirements.

Topic
Consumer Protection

Key Words
Nutrition Labeling; Menus; Calorie Content; Obesity; Local Regulation

C A S E S U M M A R Y

Facts
Concerned with rising rates of obesity and related health care issues, the New York City Board of Health adopted a regulation mandating all chain restaurants with 15 or more establishments nationally to make statements showing calorie content in a precise manner for all items on their menus in New York City. Some restaurants already provided such information, but not on every menu. They requested that alternative sources of calorie posting be considered to be compliance, but that was rejected. A restaurant association then sued the city, contending that the regulation was in conflict with federal food labeling requirements and violated the First Amendment right to free speech. The district court held for the city. The restaurant association appealed.

Decision
Affirmed. The federal Nutrition Labeling and Education Act does not regulate nutrition information labeling on restaurant food, so states and localities are free to adopt their own rules, such as calorie count. The federal Act does not preempt the New York City rule. The Act does regulate nutrition content claims on restaurant foods, so state and local governments may only adopt rules that are consistent with those provided by the Act. Commercial speech is protected by the First Amendment, but the protection is less extensive than is provided for noncommercial speech. Disclosure requirements about calories are factual and have a rational basis. The requirement is rationally related to the goal of reducing obesity.

Citation
New York State Restaurant Assn. v. New York City Board of Health, 556 F.3d 114 (2nd Cir., 2009)

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City May Require Restaurants to List Calorie Content of Food Sold
Description	Appeals court held that a New York City regulation requiring certain restaurants to list the calorie content of all items on their menu was rationally related to concern about obesity and did not conflict with federal nutrition labeling requirements.
Topic	Consumer Protection
Key Words	Nutrition Labeling; Menus; Calorie Content; Obesity; Local Regulation
C A S E S U M M A R Y
Facts	Concerned with rising rates of obesity and related health care issues, the New York City Board of Health adopted a regulation mandating all chain restaurants with 15 or more establishments nationally to make statements showing calorie content in a precise manner for all items on their menus in New York City. Some restaurants already provided such information, but not on every menu. They requested that alternative sources of calorie posting be considered to be compliance, but that was rejected. A restaurant association then sued the city, contending that the regulation was in conflict with federal food labeling requirements and violated the First Amendment right to free speech. The district court held for the city. The restaurant association appealed.
Decision	Affirmed. The federal Nutrition Labeling and Education Act does not regulate nutrition information labeling on restaurant food, so states and localities are free to adopt their own rules, such as calorie count. The federal Act does not preempt the New York City rule. The Act does regulate nutrition content claims on restaurant foods, so state and local governments may only adopt rules that are consistent with those provided by the Act. Commercial speech is protected by the First Amendment, but the protection is less extensive than is provided for noncommercial speech. Disclosure requirements about calories are factual and have a rational basis. The requirement is rationally related to the goal of reducing obesity.
Citation	New York State Restaurant Assn. v. New York City Board of Health, 556 F.3d 114 (2nd Cir., 2009)