New York City requires all menu boards and menus in chain restaurants with 15 or more establishments nationally to bear calorie content information for each menu item. The New York State Restaurant Association challenged this regulations, but the Second Circuit Court of Appeals has rejected the challenge both on federal preemption and First Amendment grounds.
The appellate court held that the Nutrition Labeling and Education Act of 1990 (NLEA), “does not regulate nutrition information labeling on restaurant food, and states and localities are free to adopt their own rules. The NLEA, however, does generally regulate nutrition content claims on restaurant foods, and states and localities may only adopt rules that are identical to those provided in the NLEA.”
The court also held the menu labeling requirement does not violate the First Amendment. In support of the purpose of the regulation the court cited in part on FDA’s amicus curiae brief and, “A 2006 FDA-commissioned report concluded that “obesity has become a public health crisis of epidemic proportions.” The report is The Keystone Forum on Away-from-Home Foods: Opportunities for Preventing Weight Gain and Obesity (2006). The Keystone Report also associated obesity with the consumption of high-calorie meals fast-food meals, the apparent link between obesity and frequent dining out, and the potential benefits of providing diners with calorie information. The court concluded that the purpose and the means used to achieve that purpose were reasonable.
Hat tip to Ricardo Carvajal.