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Court ruling paves way for NYC calorie-posting reg to take effect

NEW YORK A federal judge Wednesday cleared the way for this city’s health department to require chains of 15 stores or more to post calorie counts on their menu boards beginning April 21, after setting aside a legal challenge by the New York State Restaurant Association.

The decision, which had been postponed repeatedly in recent months, also stated that the nutrition-disclosure regulation would not be enforced until June 4, when the health department would begin seeking monetary fines for violations of the regulation.  The regulation is estimated to pertain to 2,400 NYC restaurants.

However, Chuck Hunt, executive vice president of NYSRA’s New York City office, said the association still hoped to delay the regulation’s implementation. He said the group’s attorneys planned to appeal the decision in appellate court Wednesday afternoon. The association most recently had challenged the city's authority to require nutrition disclosure and asserted federal jurisdiction over food labeling.

“[The attorneys are] going to ask the judge to issue an extended stay pending an appeal,” Hunt said. “We’re going to appeal to a higher court, but until it is decided upon, we’d like the judge to make [the health department] unable to enforce [the regulation]. Judge [Richard] Holwell will hear the request for the stay, however, if [the appeal] goes to another court, probably another judge would look at [the case and] decide on that.”

In his 27-page decision, Judge Richard Holwell found that NYSRA “failed to show a likelihood of success on its preemption and first amendment claims” and as a result its “motion for a preliminary injunction is therefore denied.”

He further stated that although the “court agrees … that one cannot conclude with scientific certainty from the available evidence that a regulation of this type will ultimately be successful in combating obesity … conclusive proof is not required to establish a reasonable relationship between [the regulation] and the city’s interest in reducing obesity.”

The judge added that it is “reasonable to expect some consumers will use the information disclosed [on menu boards] to select lower calorie meals when eating at restaurants, and that those choices would lead to a lower incidence of obesity.”

New York City Health Commissioner Thomas Frieden said, “Today’s decision is a victory, which will give New Yorkers the calorie information they need — where they need it — to make informed, healthier choices. We hope these restaurants will accept the judgment and become part of the solution. This regulation could prevent at least 150,000 New Yorkers from becoming obese and prevent at least 30,000 New Yorkers from developing diabetes and other health concerns over the next five years.”

NYSRA’s Hunt said that some restaurant operators already have started offering calorie counts on menu boards at their stores.

“Some chains, like Jamba Juice, Chipotle and Starbucks, on their own have decided to do it and that’s fine,” he said. “Basically, we continue to believe that each restaurant [operation] should decide how best to provide nutritional information to their customers.”

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