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On June 4, 2008, New York City began to require all restaurants operating in the city with 15 or more national locations to prominently display the caloric content of each menu item they serve. The newly added §81.50 of the New York City Health Code (the regulation), represents the latest public health measure promulgated by New York City’s Department of Health and Mental Hygiene (DOH) during the Bloomberg administration. While the New York State Restaurant Association (NYSRA) continues to challenge the regulation in court, restaurants that fall within the scope of the regulation must alter their menus and other displays to show the caloric content of each menu item or face fines between $200 and $2,000 per infraction. BACKGROUND According to the DOH, 1 the city agency charged with implementing public health policy, obesity is an epidemic in the United States and New York City, and a compelling risk factor in chronic diseases including heart disease, stroke, diabetes, cancer and asthma. While the federal Nutrition Labeling and Education Act (NLEA), enacted in 1994, mandates that manufacturers of packaged foods disclose nutrition information to consumers, the NLEA does not apply to food served in restaurants. Assuring safe and healthy dining options, however, is a public health priority for the DOH. Because approximately 90 percent of the restaurant chains in New York City serve fast food, the DOH has primarily focused most of its research and studies on fast food. These studies concluded that consumers of fast food consume more calories than non-fast-food consumers and that many of these consumers do not know and cannot accurately estimate the calories in the fast food they consume. As a result, they often grossly underestimate the calories in their meals. Moreover, DOH studies also found that while many consumers read the Nutrition Facts Panel on packaged foods and that nutrition affected their food choices, they lacked similar easily accessible information with regard to restaurants. The regulation is the DOH’s second attempt to address these issues. ESTABLISHMENTS EFFECTED The regulation applies to restaurants that:
(i) must hold a permit from the DOH as a “food service establishment”; (ii) serve menu items with standardized preparation, portion sizes, and content; and (iii) belong to a group that includes 15 or more food service establishments in the United States.
“Group” is defined as a collection of food service establishments that operate under common ownership or control, or as franchised outlets of a parent business, or do business under the same name. COMPLIANCE AND ENFORCEMENT Restaurants which fall within the scope of the regulation must display the amount of calories in each menu item, 2 including beverages, in close proximity to the item’s location on the menu. Calories must be listed in a font and size at least as prominent as the menu item itself. 3 If the calorie count of a menu item varies based on flavor or variety, the menu must display the minimum and maximum number of calories possible. The regulation defines a menu as any list or pictorial display of food or beverage items appearing with prices. This includes conventional menus, menu boards, take-out menus, and item tags (e.g., a small sign which identifies a food item). Affected restaurants must confirm the calories in each menu item via “verifiable analysis.” Although the regulation does not mandate laboratory testing, restaurants must nonetheless consult nutritional databases or use other reliable methods to calculate caloric content. While federal litigation commenced by the NYSRA in the U.S. District Court for the Southern District of New York stayed enforcement of the regulation, the DOH began issuing citations for noncompliance in early June 2008. Any restaurant receiving a notice of violation must appear before an administrative tribunal and faces fines ranging from $200 to $2,000 per infraction. The DOH will begin collecting fines on notices of violation that are returnable on or after July 18, 2008. CITY’S AGGRESSIVE INITIATIVES The regulation is the most recent installment in the hard-line public health policies implemented under DOH Commissioner Thomas R. Frieden and Mayor Michael R. Bloomberg. On March 31, 2002, in this column, we addressed The Smoke-Free Air Act of 2002, which banned smoking from a myriad of New York City locations, including restaurants and bars. And, as of July 1, 2008, the city’s ban on the use of trans fats in restaurants became fully effective. The city defends the regulation as a measure necessary to combat what some call an “obesity epidemic” among New Yorkers. According to the DOH, more than one-half of the city’s residents are overweight or obese and more than one-third consume their calories outside of the home. Because consumption of even 100 extra calories a day can result in a weight gain of 10 pounds annually, the DOH contends that the regulation will allow New Yorkers to make more informed eating decisions and thus lead to a healthier population. THE NYRSA CHALLENGES The DOH introduced a similar version of the regulation back in 2006 (the previous regulation). The previous regulation required restaurants that had already voluntarily disclosed nutritional information to also prominently display the calories in their menu items at the point-of-sale and elsewhere. For example, a restaurant that already discloses the calories of its menu items on its Web site would be required to post the calories on its in-store menus. The NYSRA challenged the validity of the previous regulation in U.S. District Court for the Southern District of New York, 4 arguing that it was expressly preempted by the federal Nutrition Labeling and Education Act (NLEA), which governs the form in which restaurants disclose nutritional information. In a decision issued last September, U.S. District Judge Richard J. Howell struck down the Previous Regulation on the grounds that it was preempted by the NLEA and thus the city had improperly attempted to regulate an activity that was already governed by federal law. The court reasoned that by requiring restaurants which already voluntarily disclose nutritional information to also post calories at the point-of-sale and elsewhere, the city impermissibly augmented the form in which restaurants may voluntarily disclose nutritional content under NLEA. Notably, although the court struck down Previous Regulation because of its drafting deficiencies, it clearly acknowledged the city’s authority to mandate that restaurants disclose nutritional information. 5 Judge Howell’s decision also provided a framework for drafting a regulation that would not run afoul of the preemption doctrine. According to Judge Howell, if the city required restaurants with more than a certain number of locations to post nutritional information rather than requiring this only from restaurants that already voluntarily disclosed nutritional information pursuant to NLEA, preemption would not apply. Predictably, the DOH declined to appeal the decision and instead modified the Previous Regulation, following Judge Howell’s guidelines, into the form of what is now the regulation. Undeterred, the NYSRA again challenged the regulation, 6 alleging that the NLEA still preempted the regulation and that the regulation violated the restaurants’ First Amendment freedom of speech rights. This time, Judge Howell found the regulation was not preempted by the NLEA. 7 Additionally, Judge Howell held that the regulation did not unduly infringe upon the restaurants’ First Amendment rights because the city’s underlying public health interests were sufficiently related to the regulation’s restriction on the restaurants’ speech. The NYSRA has appealed Judge Howell’s latest decision to the Second Circuit. Oral arguments were held in June 2008 and a decision is expected sometime later this year. CONCLUSION As the DOH, the city Council, and the Bloomberg administration have demonstrated again, shouldering the costs of progressive and often burdensome health regulations is an incidental part of operating a restaurant in New York City. Restaurants effected by the regulation must immediately post the calories of their menu items or face substantial fines. Barring reversal by the Second Circuit or the intervention of the Supreme Court, calories will likely become a permanent staple on the menus of New York City’s chain restaurants. Even if consumers ultimately choose the tasty over the healthy, the DOH hopes that providing clear and comprehensible point of purchase calories will have the effect of assisting them in making more informed and healthier food choices in restaurants, thereby reducing obesity and the many related health problems which it causes. Certainly a laudable goal. Terrence A. Oved and Darren Oved are partners at Oved & Oved, which concentrates on litigation, corporate, real estate and entertainment law. Dan Watkins, a summer associate at the firm, assisted in the preparation of this article. Endnotes: 1. See, Department of Health and Mental Hygiene Board of Health Notice of Intention to Repeal and Reenact §81.50 of the New York City Public Health Code, Notice of Public Hearing held Nov. 27, 2007. 2. Notably, the regulation does not require that calories be posted for menu items offered for less than 30 days in a calendar year. 3. A sample menu board can be seen at http://www.nyc.gov/html/doh/downloads/pdf/cdp/calorie_compliance_guide.pdf. 4. New York State Restaurant Association v. New York City Board of Health, et al., 07 Civ. 5710 (RJH), USDC SDNY, 509 F.Supp.2d 351 (2007). 5. “The majority of state or local regulations – those that simply require restaurants to provide nutrition information – therefore are not preempted. Such regulations impose a blanket mandatory duty on all restaurants meeting a standard definition such as operating ten or more restaurants under the same name . . . . There is no voluntary aspect to such a disclosure requirement and no basis for arguing that the mandated disclosures are more properly considered the regulation of voluntary claims subject to [21 USC] §343 (r). Id. 6. New York State Restaurant Association v. New York City Board of Health, et al., 08 Civ. 1000 (RJH), USDC SDNY. 7. New York State Restaurant Association v. New York City Board of Health, et al., 08 Civ. 1000 (RJH), USDC SDNY, Slip Copy, 2008 WL 1752455 (2008).

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