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Appeal considered as court upholds NYC labeling law

NEW YORK The New York State Restaurant Association said it is weighing whether to appeal a federal court ruling Tuesday to uphold New York City’s law requiring that some chain restaurants post calories on menus and menu board.

NYSRA had filed a lawsuit in federal court early in 2008 challenging the city's requirements, which were passed by the City Council in 2007 and have been in effect since last July. Rick Sampson, president and chief executive of NYSRA, said he was not surprised by the decision handed down Tuesday by a 2nd U.S. Circuit Court of Appeals panel.

"There was no way they were going to roll this back after it had been implemented," Sampson said. He added that the association's board would determine whether to appeal the decision.

The appeals court rejected NYSRA's arguments that New York City's health department lacked the authority to impose a labeling policy and was pre-empted by federal law, in particular the Nutrition and Education Act of 1990. The lawsuit also claimed the city violated the First Amendment by forcing restaurant patrons to accept health officials' view that calories are the most important nutritional information on a menu.

The New York City regulation, which officially took effect July 2008, requires all restaurants in the city that are part of a chain with at least 15 outlets nationwide to display calorie information on menus and menu boards.

New York is the first U.S. jurisdiction to enact such a regulation. Since then, menu-labeling laws have been passed in California, Philadelphia, King County, Wash., Multnomah County, Ore., and Westchester County, N.Y. Several other jurisdictions are considering similar measures.

Contact Paul Frumkin at [email protected].

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