Revised NYC menu-labeling law reignites fierce debate

Nation's Restaurant News, Feb 4, 2008 by Paul Frumkin

NEW YORK -- New York City's decision to re-enact a controversial menu-labeling law could trigger another legal challenge from industry officials, though their last lawsuit against the calorie-disclosure ordinance, albeit successful, also yielded court clarification of the permissible scope of such rules.

In a unanimous vote, the city's Board of Health adopted revised regulations requiring all restaurant chains with at least 15 outlets nationwide to display calorie counts on menu boards, menus or food tags. A similar policy set to be enacted here last summer was struck down by a federal judge, but only because it applied only to restaurants that already disclosed calorie data by way of other media, such as websites and brochures.

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Meanwhile, lawmakers in a growing number of jurisdictions are keeping a close eye on New York City's reimposition of a disclosure rule. At least seven states, three counties and two additional cities are currently entertaining menu-labeling legislation, according to the National Restaurant Association. A federal menu-labeling bill also has been introduced.

New York State Restaurant Association chairman Rick Sampson said the NYSRA had expected the city to impose the revised regulations after municipal officials vowed in October to rewrite the law, following the NYSRA's lawsuit blocking the initial attempt.

"We're exploring all of our options, which includes the possibility of further litigation," Sampson said. "We plan to talk with our legal council and assess the situation. But I'd say there is a very good chance of another lawsuit."

With the new law scheduled to take effect March 31, Sampson said: "Something probably has to be done ASAP. The next step could be a temporary injunction."

New York City health commissioner Dr. Thomas Frieden maintained that posting calorie information would help fight obesity by aiding consumers in making "healthier choices about what to eat and drink."

That argument also is being made by lawmakers across the country. Last year officials in King County, Wash., enacted regulations requiring chains with at least 10 locations nationwide and total annual sales of at least $1 million to post calorie, trans-fat, saturated-fat, carbohydrate and sodium contents on their menus or menu boards. The rule is scheduled to take effect Aug. 1.

While a legal challenge remains a possibility, the Washington Restaurant Association is attempting to work with state lawmakers to address the issue. Trent House, the WRA's director of government relations, said the association is trying to help craft a statewide nutritional disclosure policy that would offer a compromise position, preventing a patchwork of regulations.

The WRA supports two companion bills in the state House and Senate that would require chains with 25 units nationwide to post the same information required by King County. However, operators would could choose to post the data on menus or menu boards, brochures, packaging, tray liners, posters, table tents, or electronic kiosks. If enacted, the law would sunset in 2013, enabling the industry and lawmakers to revisit the issue.

"The science is still being developed," House said. "Let's see how effective this will be."

House added that the bills have bipartisan support. If enacted, the state regulations would supersede those enacted in King County.

John Gay, senior vice president of government affairs and public policy for the National Restaurant Association, said that while New York "got the ball rolling" when it passed its law in 2006, similar initiatives now are being debated nationwide. According to the NRA, related legislation is pending in Massachusetts, New York state, Pennsylvania, New Jersey, Michigan, Hawaii and Indiana; Washington, D.C., Chicago, Westchester County, N.Y., Montgomery County, Md. and Santa Clara County, Calif.

Menu-labeling legislation has been defeated in California, New Mexico, Arizona, Illinois, Tennessee, Connecticut, New Hampshire and Maine.

Rep. Rosa DeLauro, D-Conn., and Sen. Ted Kennedy, D-Mass., introduced companion bills in Congress that would require restaurant chains across the country to disclose nutritional data on menus.

"[Menu labeling] has become one of our top issues," Gay said.

While conceding that the nation faces an obesity problem, John Whipple, president of the National Council of Chain Restaurants and former vice president of government relations for McDonald's Corp., maintains that foodservice is being penalized unfairly.

"Many chain restaurants have been voluntarily providing comprehensive nutritional information for years," Whipple said. "And you have to question who is being served by these regulations. According to the [New York] health department, these rules apply only to 10 percent of the city's [23,000] restaurants. What about the other 90 percent of the restaurants in New York? Consumers go into those establishments every day. How are they being served?"

It also remains unclear whether consumers themselves want nutrition information on menus. Though a poll conducted by the California Center for Public Health Advocacy said 85 percent of the state's residents want nutrition information on menus, a study by the NPD Group finds consumers in New York to be less enthusiastic.