NEW YORK The New York State Restaurant Association has refiled a lawsuit in federal district court to challenge the city’s revised requirements that some chain restaurants prominently post calorie content for each menu item.
Afederal judge struck down a similar law in September as a result of a lawsuit filed in the summer by the NYSRA. Consequently, the city’s Board of Health crafted a new set of regulations and voted unanimously earlier this month to adopt them as of March 31. The revised policy requires all New York restaurants that are part of a chain with at least 15 branches nationwide to display calorie information on menus, menu boards or food tags.
The previous law applied to only those operators that already posted nutritional content on the Internet, food wrappers, tray liners or in brochures and that operated 10 or more New York City outlets. It was scheduled to take effect July 1, 2007, but was never put into effect because of the NYSRA’s initial legal challenge.
In that first suit, the NYSRA maintained that the city’s health department lacked the authority to impose a labeling policy. That authority was bestowed on federal regulators by the Nutrition Labeling and Education Act, which specifically exempted restaurants.
The suit also claimed that the requirement was discriminatory since it singled out restaurants that already made nutritional information available though other means.
In the first round, U.S. District Judge Richard Holwell ruled in the association’s favor, saying only the federal government had the authority to regulate what nutrition information can or cannot be voluntarily disclosed. But Holwell noted that the health department would not have violated federal standards had it not restricted the labeling requirement to chains that voluntarily disclosed the information.
The newly drafted lawsuit essentially will pursue the same essential arguments, according to NYSRA officials. “Our argument is focused on pre-emption,” said David Wukitsch, litigation counsel for the association. “There is already a federal law that covers this area, and that pre-empts any city law that is different.”
New York City's health department said in a statement: “It is unfortunate that the Restaurant Association and the chain establishments it represents would rather go to court than provide customers with the clear information they want and need. We hoped the industry would work with us to address New York City’s obesity epidemic, but it has once again decided not to.”
Rick Sampson, president and chief executive of the NYSRA, said the association “couldn’t just sit back when the [health] commissioner [Thomas Frieden] approved the new regulations. A number of chains had spoken to him about posting them in alternative ways, like posters. But as far as he's concerned, this is the only way the information can be listed. It should be up to us about how we deliver the message.”
The association also intends to ask for a preliminary injunction to postpone the March 31 enactment date.