Judge Throws Out New York Rule Requiring Restaurants To Post Calories

A federal judge struck down a city health regulation yesterday that would have required more than 2,000 restaurants around New York — including chain restaurants like McDonalds — to post the calorie content of their dishes on their menus.

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The ruling by the judge, Richard J. Holwell of United States District Court in Manhattan, was a victory, albeit a narrow one, for the New York State Restaurant Association, which had sued the city Board of Health to challenge the regulation. In his ruling, Judge Holwell said he had banned the city from enacting the regulation because federal law already covers some of the same provisions it sought to put in place.

It was unclear whether the city would try to adopt a regulation that might satisfy the judge.

The regulation, formally known as New York City Health Code 81:50, would have forced restaurants that already voluntarily make public the nutritional information of their dishes on things like Web sites, posters or tray liners to post that information either on their menus or menu boards.

The rule, adopted last December but delayed because of the lawsuit, was one of a handful of measures that the city has recently undertaken to govern the eating habits of its citizens, including a ban on trans fats. Had it been enacted, it would have affected 2,375 of the more than 23,000 licensed restaurants in New York.

In papers filed to Judge Holwell this year, the city said it had proposed the regulation to counteract an obesity epidemic in New York. According to the papers, more than half the citys residents are overweight or obese and have an increased risk of diabetes, heart disease, stroke and cancer. The city argued that posting calorie information in a prominent place would have had a substantial potential for public health impact and that consumers were likely to decrease their intake if they knew how many calories they were eating.

The state restaurant association challenged the regulation by arguing that it was technically superseded by the federal Nutrition Labeling and Education Act of 1990, which requires nutritional labeling on all packaged foods and outlines some criteria for restaurants that voluntarily post their own caloric information.

The judge made the point that the voluntary nature of the regulation was the reason he had tossed it out. The city, he ruled, could have required all restaurants or all chain restaurants to post the caloric contents of their dishes, but was not allowed to regulate how those that chose to do so voluntarily went about it because of the existing federal law.

The restaurant group had also tried to argue that the regulation was a violation of free speech under the First Amendment, but Judge Holwell refused to consider that argument in his decision.

Were very pleased with the judges decision, said Chuck Hunt, a spokesman for the restaurant association. Basically what this regulation did was punish the good guys.

Mr. Hunt added that federal regulations that require nutritional information on packaged food have done little to combat obesity. We feel the way to address obesity is through education, not legislation, he said.

Mark W. Muschenheim, senior counsel for the administrative law division of the citys Law Department, said in a statement: While the interests of public health would have been better served if the calorie posting requirement could have been immediately implemented, we are pleased that the court recognized the city could still adopt this requirement, and we are considering our options as to how to best achieve that goal.

The citys Department of Health and Mental Hygiene released in its own statement. We are pleased that Judge Holwells decision recognizes the right of New York City and other local governments to mandate nutritional labeling in restaurants, the department said. Unfortunately, the judge found that New York Citys calorie-labeling initiative is pre-empted on a technicality.

In recent years, Judge Holwell wrote in his decision, at least 17 local governments in the country have either passed or tried to pass legislation requiring restaurants to post the calorie contents of their dishes.

On Monday night, in fact, California became the first state in the country to require fast-food restaurants to post calorie information on their menu boards.

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