Rule Requiring Chain Restaurants to Post Calorie Content Upheld

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

A New York City regulation requiring chain restaurants to post calorie content for menu items was not federally preempted or unconstitutional under the First Amendment, the U.S. Court of Appeals in New York City has ruled. A federal district court decision upholding the regulation (CCH Advertising Law Guide ¶62,913) was affirmed.

The regulation, adopted in January 2008, requires all chain restaurants with fifteen or more establishments nationally to make statements showing calorie content precisely in the manner prescribed. The calorie information must be presented clearly and conspicuously, adjacent or in close proximity to the menu item, and the font and format of calorie information must be as prominent in size and appearance as the name or price of the menu item.

The mandatory disclosure requirement differs from a 2006 version of the regulation—applicable only to restaurants that voluntarily disclosed nutrition information—which had been held to be preempted by the federal Nutrition Labeling and Education Act (NLEA). Under the NLEA, restaurants generally are exempt from federal mandatory food nutrition labeling rules, but restaurants that choose to make nutrition content “claims” are subject to Food and Drug Administration regulation.

Federal Preemption

The court rejected the contention of the New York State Restaurant Association that New York City’s 2008 regulation, like the 2006 version, was federally preempted

The federal statutory scheme regulating labeling and branding of food is a “labyrinth,” the court said. A series of agency regulations interpreting the NLEA sometimes appeared to conflict and were difficult to harmonize.

The court determined that Congress intended to exempt restaurant food from the preemption provisions that were necessary to allow food to be sold interstate. In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments.

First Amendment

In addressing the restaurant association’s First Amendment challenge, the court acknowledged that restaurants are protected by the Constitution when they engage in commercial speech. However, the First Amendment is not violated when the regulation at issue mandates a simple factual disclosure of caloric information and is reasonably related to New York City’s goal of combating obesity, the court held.

The opinion,New York Restaurant Association v. New York City Board of Health, will be reported in CCH Advertising Law Guide.