NEW YORK The New York State Restaurant Association, in an attempt to halt the April 21 enforcement of a city-wide calorie-posting regulation that was approved by a federal judge yesterday, is seeking a court-ordered stay pending an appeal of the verdict.
Judge Richard Holwell’s ruling yesterday paved the way for health officials here to require chain restaurants of 15 stores or more to post calorie counts on their menu boards no later than June 4, or face code violations and subsequent fines.
The request for a stay, which would halt enforcement of the health department’s regulation until an appeal is decided, will be heard today at 5 p.m. by that same federal judge, according to NYSRA attorney David J. Wukitsch.
“The restaurant association is attempting to prohibit the enforcement of the revised regulation pending the decision on appeal,” Wukitch said. If judge Holwell grants the stay, Wukitch said, he would have had to “find a reasonable possibility that the restaurant association would succeed on its appeal.”
The revised regulation, which the judge ruled on yesterday after several postponements in recent months, emphasized that chain operators had until June 4 to provide the nutrition information before penalties will occur for lack of compliance. After June 4 the health department is permitted to seek monetary fines for violations of the regulation, which currently affects approximately one-tenth of all restaurants in New York City, or around 2,400 in total.
In his 27-page decision, the judge said 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 the 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.”
Chuck Hunt, executive vice president of NYSRA’s New York City office, 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.”
Starbucks began offering calorie counts on its menu boards on April 14. A barista at a midtown Manhattan Starbucks unit said, “It was awful the first day; people were looking at the calories and switching their orders, but now everything is back to normal.”
Dunkin Brands Inc., the Canton, Mass.-based operator of more than 13,460 Dunkin Donuts and Baskin-Robbins ice-cream stores, said the company would comply with the calorie count rule, but is concerned about how the extra cost of new menu boards will affect its franchisees.
“While we agree with New York City’s intention to provide consumers the nutrition information needed to make informed choices, we also believe there are better, less cumbersome and more cost-effective solutions than the new menu-labeling regulation that was passed,” said spokesman Steven Caldeira. “In today’s challenging economic environment, we believe the regulation directly and unfairly impacts our hard-working franchisees.”