Sunday, February 22, 2009

Menu Labeling Laws – Sweeping The Nation?

As a newcomer to First Movers, I would like to briefly introduce myself and thank Dean Jim Chen of the University of Louisville Brandeis School of Law for inviting me to contribute. I am 2003 graduate of Georgetown University Law Center and a current doctoral student in public health, focusing on health promotion. My particular area of research interest is the intersection between law and policy in regard to obesity initiatives.

There has recently been a considerable amount of press coverage of regulations requiring that restaurants post nutritional information on menus and menu boards. New York City is the first city to have passed such a regulation, though not without incident.

New York passed its first menu labeling regulation (amending Health Code § 81.50) in December 2006. However, the New York State Restaurant Association successfully challenged the regulation on preemption grounds. On September 11, 2007, Judge Howell (S.D.N.Y.) granted the NYSRA's motion for partial summary judgment, striking down the regulation on the grounds that it was expressly preempted by the Nutrition Labeling and Education Act of 1990 (NLEA) because it applied only to restaurants that had voluntarily provided calorie information, rather than simply requiring all chain restaurants to post calorie information. New York State Restaurant Assoc. v. New York City Board of Health, No. 07 Civ. 5710 (S.D.N.Y. Sept. 11, 2007).

New York redrafted its menu labeling regulations and adopted a revised §81.50 in January 2008. The revised regulations require food-service establishments that are part of a chain of 15 or more restaurants nationally to list calories for standard menu items on menu boards, menus, or food item display tags. The font and format used for calorie information must be at least as prominent in size as is used for the name or price of the menu item. The NYSRA immediately challenged the new regulations on preemption and First Amendment grounds (under a compelled speech theory). However, Judge Howell upheld the new regulations in April 2008, ruling that the new regulations are not preempted by federal law and do not infringe on restaurants' First Amendment rights. Although the NYSRA requested a stay of enforcement pending appeal, Judge Howell denied the request, as did the Second Circuit, and enforcement began in May 2008 (though fines were not issued until July 2008). Supporting New York City in the appeal were a number of public interest groups, including, to name just a few, Public Citizen, U.S. Congressman Henry Waxman, Former FDA Commissioner David Kessler, Center for Science in the Public Interest, American College of Preventive Medicine, American Diabetes Association, American Medical Association, American Public Health Association, and many other leading public health groups and academic experts.

The Second Circuit upheld the revised regulation earlier this week, in an opinion written by Judge Rosemary Pooler. New York State Restaurant Assoc. v. New York City Board of Health, No. 08-1892-cv (2d Cir. Feb. 17, 2009) (Decision available at Rejecting the NYSRA's preemption argument, the court explained: "In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments." In assessing the NYSRA's First Amendment arguments under a rational basis standard, the Court pointed to research concluding that eating out is a major contributor to obesity. Moreover, the Court cited studies showing that consumers are typically unable to accurately assess the caloric content of foods (perhaps because of the "health halo"?) – "a statement which we do not doubt upon being informed, counter-intuitively, that a smoked turkey sandwich at Chili's contains 930 calories, more than a sirloin steak, which contains 540, or that 2 jelly-filled doughnuts at Dunkin' Donuts have fewer calories than a sesame bagel with cream cheese."

New York is not the only city that has mandated menu labeling in recent years. Many jurisdictions have followed suit, including the state of California, King County, Washington (Seattle), Multnomah County, Oregon (Portland), Philadelphia, Westchester County, New York, and most recently (less than three weeks ago), Suffolk County, New York.

Suffolk County's menu labeling bill, which is modeled after New York City's, passed 17-1, which may indicate that these types of bills are becoming less controversial in certain regions of the country. Suffolk County lawmakers stated that they hope that making available more nutritional information will help consumers make healthier decisions. The lawmakers used Starbucks as an example: a grande Caffe' Latte has 130 calories, but a venti Strawberry Crème Frappuccino has a whopping 750 calories. It remains to be seen whether providing this information on a menu will actually lead consumers to choose lower calorie options, although the New York City Department of Health projected that menu labeling in the City will prevent at least 30,000 new cases of diabetes over the next five years.

In September 2008, California became the first state to pass a menu labeling regulation, although its bill is less widely applicable than New York City's law and will not be fully effective until January 2011. Under the California law, which supersedes any existing or future local ordinances, restaurants that have twenty or more locations in California must post calorie information for all standard menu items on menus, menu boards, and food display tags. The bill does not require nutrition information at grocery stores, for items on the menu for less than 180 days, alcoholic beverages, or self-service items at salad bars or buffet lines. Although the bill is less widely applicable than New York City's regulation, which applies to any restaurant with fifteen or more locations nationwide, California lawmakers expect that the provision of nutrition information will result in significant positive health effects for the state, including the prevention of up to 38.9% of weight gain. See here for more details.

Although a menu labeling bill wasn't terribly surprising coming from California, which is generally more health conscious than the rest of the country, it was quite a surprise to see the aggressive approach taken by Philadelphia, home of the cheesesteak. In November 2008, Philadelphia passed what is currently the strictest menu labeling regulation in the country. The bill, which will be effective in January 2010, requires restaurants with more than 15 outlets nationwide to disclose calories on menu boards, AND calories, saturated and trans fat, sodium and carbohydrates on printed menus. It will be extremely interesting to see how this bill will impact sales at sit-down chain restaurants known for delivering caloric wallops, since those establishments have had no nutritional disclosure obligations until now and have thus (predictably) provided minimal to no nutritional information.

Even my home state of Kentucky, not usually known for its nutritional initiatives, is considering a menu labeling bill, filed by state Senator Denise Harper Angel of Louisville. Sen. Harper Angel's bill, SB 133, would require restaurants with at least 10 locations in Kentucky to provide calorie information on menus and menu boards on all standard menu items. Sen. Harper Angel said the bill, which she calls C-Meal (Consumer Menu Education and Labeling) truly is a consumer bill. "Displaying calorie information in this manner is a common sense approach that would allow consumers to exercise personal responsibility by providing them with the knowledge they need to make informed decisions," she said. "C-Meal would allow people to make better dining choices." Although the bill seems unlikely to progress during the 2009 legislative session (a similar bill was proposed in 2008 and went nowhere), it seems indicative of the larger trend of states and cities taking the initiative to provide consumers with nutritional information in the absence of federal regulations on the subject.

Although no federal menu labeling requirements exist, the topic has gained momentum in recent years, especially now that the National Restaurant Association is actively supporting the Labeling Education and Nutrition (LEAN) Act, introduced in the 2008 Congressional session. The industry supports this bill on the grounds that a "uniform national nutrition standard will allow consumers access to detailed nutrition information that meets their needs while providing clarity, consistency and flexibility for restaurants in how that information is provided." The LEAN Act would require restaurant and grocery chains with twenty or more outlets to make nutrition data for menu items available to customers before they reach the point of purchase. Specials that are on the menu for 90 days or less would be exempt.

"Before the point of purchase" gives food establishments significant flexibility. Under the LEAN Act, foodservice operations with menu boards would have the choice of listing calories on the board, on a sign next to the menu board, on a sign in the wait queue or by other means as decided by the U.S. Department of Health and Human Services. This requirement is significantly different than those in many state regulations, which require that calorie counts be listed in close proximity to a menu item and in equal prominence to the item. The LEAN Act also states that restaurants with menus could list calories directly on the menu, on a supplemental menu, on a menu insert or on a menu appendix.

Importantly, the bill would preempt all earlier state and local menu-labeling mandates and preclude states and localities from enacting stricter regulations in the future.

A competing bill, the Menu Education and Labeling Act (known as the MEAL Act ), introduced by Rep. Rosa DeLauro, D-CT in the House and Sen. Tom Harkin, D-IA, in the Senate, is supported by many public interest groups and opposed by the restaurant industry. The MEAL Act (which stalled in committee but is expected to be reintroduced this session) would require restaurants that are a part of a chain with twenty or more locations to disclose : (1) in a statement adjacent to each menu item, calorie content, saturated plus trans fat, and milligrams of sodium in a standard serving; and (2) in a statement adjacent to the name of the food on a menu board, the number of calories in a standard serving. The bill exempts condiments, items placed on a table or counter for general use, daily specials, temporary menu items, and irregular menu items. Interestingly, the bill would also require restaurants that sell self-serve food, such as through salad bars or buffet lines, to place a sign that lists the number of calories per standard serving adjacent to each item, and would require vending machine operators to provide a conspicuous sign disclosing the number of calories in each item. In light of Judge Posner's grudging approval of the New York regulation, it would be interesting to know which of these competing bills he would support.

A key provision, which is highly objectionable to the restaurant industry, would allow states to require the disclosure of additional nutritional information. Although the restaurant industry objects to this provision of the bill, it seems relatively unlikely at this point in time that a particular state would require significantly more disclosure than is required under the MEAL Act's already stringent requirements.

Although the plan is for the bills to be reintroduced in the current session, it is certainly possible that these types of bills will be pushed to the back burner in light of the severe economic pressure afflicting all types of industries. Delaying consideration of laws that would impose a cost on industry (however minimal) may be preferable to pushing forward if the resulting bill would be relatively toothless and would preempt more stringent state regulation.

In my next post — which I promise will be shorter than this one! — I will explore some of the initiatives that seek to limit the density of certain types of food establishments in particular locations. These efforts may gain momentum in light of continuing research showing a correlation between fast food prevalence and negative health outcomes. Only this week, at the International Stroke Conference held by the American Stroke Association, researchers presented epidemiological evidence demonstrating a statistically significant association between the number of fast food restaurants and the risk of stroke. While researchers cautioned that the association does not imply causation, this type of information is virtually certain to influence the debate about the types of establishments that a city will encourage or permit.


Anonymous Anonymous said...

Although the policy may be of help to people in understanding what they are eating in terms of calories, but then it is totally up to people to decide what they want to eat. The policy can only curb the tendency only to a certain extent. People have to decide that they should eat healthy and the government should work on spreading awareness messages. At the same time, there should be laws about usage of raw materials like oil, fat etc in restaurants.

2/25/2009 12:24 AM  
Anonymous Anonymous said...

It seems to me that these laws have advantages and disadvantages. You read all the time about how many chain restaurant "salads" are really 1,500 calories. If a customer actually sees that in print it could be a real eye opener.

While this looks like it is really slated for chains now, if these laws ever trickled down to the mom and pop restaurants the cost alone of the services that perform the nutritional analysises could really hurt ownership.

3/03/2009 4:27 PM  
Anonymous local movers san diego said...

This was a very interesting article. Thanks for the insight.

5/12/2009 2:33 PM  
Anonymous Chris from DC Movers said...

Thanks for the article. You really approached the matter in a great way. Would be permanent reader of your blog now.

1/11/2010 2:54 PM  

Post a Comment

<< Home