NEW YORK A panel of judges heard arguments today in the New York State Restaurant Association’s legal challenge of New York City’s calorie-disclosure law, which will be enforced with fines starting in mid-July.
The restaurant association has brought an appeal to the U.S. Court of Appeals in an effort to overturn the law, which requires local branches of chains with at least 14 more units nationwide to disclose calorie counts on menu boards, menus and signage for every item. The NYSRA is arguing that the law, decreed by the city health department, is a violation of restaurateurs’ right to free speech under the First Amendment of the U.S. Constitution. Officials point out that restaurants are limited in how they can communicate the calorie information to consumers. The data has to be provided either on menus, menu boards or signs in display cases. Other areas that have passed menu-labeling mandates, like King County, Wash., and San Francisco, will allow restaurants to display the information in a number of ways.
The group had also argued that the city lacked the right to regulate nutrition disclosure because that authority rests exclusively with the U.S. Food and Drug Administration. But the FDA said in a brief filed with the court on May 29 that its statutory authority to regulate packaged-goods labeling does not pre-empt states and local jurisdictions from mandating nutrition disclosure from restaurants.
The city voiced confidence that it will also prevail over the industry’s First Amendment argument. The case is being heard by a three-judge panel.
“We were very pleased with our argument and are looking forward to a decision, but we don’t know when it will be issued,” said Mark Muschenheim, an attorney for the city’s law department. “This is a very important piece of legislation that addresses the obesity epidemic occurring in New York City, and we feel strongly that the provision was properly enacted and did not violate the First Amendment.”
Muschenheim said other areas considering a menu-labeling mandate could be guided by the court’s decision. “Assuming we prevail in our case, it would not be surprising if other local municipalities were to follow suit, and many are already considering [similar legislation] as we speak,” he said. Disclosure requirements are under consideration in Washington, D.C. and Chicago, and in the statehouses of New York and California.
According to the city’s health department, inspectors have already issued violations against 81 fast-food chains that have not complied with the calorie disclosure law. Under an agreement hammered out earlier in court, the department has agreed not to fine places until next month. Beginning July 18, restaurants that do not offer full caloric disclosure will face fines ranging from $200 to $2,000, as well as deductions from their health-code inspection scores.
The authorities say that only 25 percent of the 2,000 restaurants covered by the mandate are currently posting the required information.