Consumer Law

Fast-Food Calorie Law Goes Into Effect in New York City

By Deepak Gupta

by Deepak Gupta

Did you know that a smoked turkey sandwich (930 calories) at Chili's has more calories than a sirloin steak (540 calories)?  Or that a large milk shake from Mc Donald's has over 1,000 calories, about half a day's recommended amount? Or that two jelly-filled doughnuts at Dunkin' Donuts have fewer calories than a sesame bagel with cream cheese?   

New Yorkers are about to find out. Thanks to an order from the Second Circuit issued late yesterday afternoon (the same day as oral argument on a stay motion), New York City's landmark calorie law is now in effect.  The law requires large fast-food chains to post calorie information about standardized food items on their menus, so consumers can make healthier choices about their diets.  You can still choose that gut-busting 1,500-calorie meal, of course, but you won't be able to say you didn't know what you were getting into.

Yesterday's order is the latest development in an ongoing legal food fight over the new law, about which we've blogged here before. The New York State Restaurant Association has been challenging the City's measure on two grounds: (1) that it's preempted by the Nutrition Labeling and Education Act (the federal statute that requires the Nutrition Facts Panel on the packaged foods you buy at the supermarket) and (2) that it violates the fast food chains' right to free speech under the First Amendment, because it requires them to disclose information to consumers that they'd rather not disclose.  The first time around, they won a pyrrhic victory from the district court, which held that a minor quirk of the rule rendered it preempted but that the substance of the rule passed muster; the City fixed that quirk and the restaurant association sued again.  On April 16, U.S. District Judge Richard Holwell issued a very careful, thorough decision rejecting the restaurant association's preemption and First Amendment theories. Two days later, the judge issued another thoughtful opinion, denying the restaurant association's request for a stay pending appeal.

Public Citizen has been participating actively in this litigation. We twice filed friend-of-the-court briefs and presented oral argument, explaining to the court that the NLEA expressly leaves cities and states free to regulate nutrition labeling in restaurants and that the First Amendment does not prevent reasonable commercial disclosure requirements. (Public Citizen's briefs were joined by a distinguished list of amici, including Rep. Henry Waxman, who was the author of the NLEA, former FDA Commissioner David Kessler, the Center for Science in the Public Interest, the American Diabetes Association, the American Medical Association, as well as other health groups and several of the nation?s leading professors of nutrition and public health.)

So what now?  The restaurant association's last hope to knock out the law is their appeal to the Second Circuit, which now goes forward on a very expedited schedule: Briefing will take place in May and oral arguments will be heard the week of June 9.  Meanwhile, lawmakers in Seattle and San Francisco have enacted similar laws and several cities, counties, and states around the country are considering doing the same. Stay tuned; we'll let you know what happens next.

Full post as published by CL&P Blog on April 30, 2008 (boomark / email).