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Chicago — When New York City’s board of health declared last month that all restaurants must phase out use of artificial trans fats, an ingredient linked to heart disease, it didn’t take the National Restaurant Association long to raise the specter of litigation. The association questioned how a substance approved by the Food and Drug Administration (FDA) could be banned by the city. Possible local pre-emption of federal authority-as well as possible violations of the interstate commerce clause and due process by the health board-are among legal challenges that could be raised, lawyers said. So far, no lawsuits have been filed. With Chicago’s city council considering a similar ban that would restrict use of trans fats and calling for warning labels when they are used, efforts to cut back on the fats are gaining momentum. Still, the board’s action may be challenged. Ongoing tension “You’ve got this tension between state rights and the federal structure,” said Hogan & Hartson attorney Martin Hahn, whose Washington firm helped the association craft comments to the New York board before its vote in December. “I think everyone has to recognize that the issue is in play.” Some restaurants object to alternative oils because they’re more costly and because changes to recipes can’t be hurried. (The board has provided 18 months.) While some fast-food chains, including KFC Corp., are voluntarily phasing out use of trans fats, others, like McDonald’s Corp., say they aren’t ready to roll out a new oil blend nationally. McDonald’s will comply with the New York ban. The association is “still considering” its legal options, said spokeswoman Chrissy Shott, who declined to be more specific. The Illinois Restaurant Association wants a “compromise” with the Chicago council, said Ivan Matsunaga, chairman of the chapter and an executive at Connie’s Pizza, a Chicago chain restaurant. The chapter would let the national body take the lead on any lawsuit, he said. In addition to the argument that local authorities are infringing on federal regulation of food, lawyers said opponents could argue that a ban violates the U.S. Constitution’s commerce clause, which precludes interfering with commerce between states. The ban could effectively block the transport of some food into New York, said Sarah Olson, a products liability attorney at Wildman, Harrold, Allen & Dixon in Chicago. “That’s a legal challenge waiting to happen,” Olson said. The New York ban might also be vulnerable on grounds that there wasn’t a fair process behind the board’s action, lawyers said. Opponents could argue that it was “arbitrary and capricious and that there isn’t scientific support for the regulation,” said Denis Stearns, a Marler Clark attorney in Seattle who works on food cases. There could also be a constitutional challenge based on personal freedom to indulge in fat, the lawyers said. Such a tack would assert that there are less drastic ways to curb consumption of trans fats, such as education and labeling, said Northwestern University School of Law professor Marshall Shapo, who teaches on tort and products liability law. “To ban a substance is an exceedingly rare, very extreme step,” said Eric F. Greenberg, a food and drug law litigator in Chicago. Still, some lawyers doubt that opponents would be successful in a legal counterattack. The FDA has long left regulation of restaurants to state and local governments, Stearns said. “On the whole, the courts are fairly sympathetic to regulations that are designed to protect the public health,” Shapo also noted. As for Chicago, the proposal of a ban may suffice. “We feel this constant pounding away at the industry is having an impact,” said Donal Quinlan, a staff person working on the issue for the Chicago proposal’s sponsor, Alderman Edward Burke. “We’re seeing more and more change voluntarily.”

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