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February 7, 2008

NYC Calorie-posting law: Will it be preempted again?

New York City is giving its Calorie labeling law (blogged here ) another try.

From an Associated Press article:

“…the city Board of Health voted Jan. 22 to approve a new version of a law requiring fast-food outlets to display calorie counts on their menus

“…the restaurants will be required to display calorie counts “in close proximity” to the items on their menus or menu boards in letters and numbers at least as big as the name of the item or the price…”

Back in December 5, 2006, the NYC Board of Health adopted a resolution adding § 81.50, which mandated that any food service establishment, meeting certain qualifications, must make calorie information publically available on its menu boards.   Section 81.50 was struck down in September by U.S. District Judge Richard Holwell based on preemption by federal law.   Yet, the judge concluded “the City has the power to mandate nutritional labeling by restaurants, but [must do so] in a manner that [does not] offend the federal statutory scheme for voluntary nutritional claims.”   Click to see that opinion .

The new Resolution was adopted on Jan. 22, 2008.

"As amended, Health Code §81.50 requires FSEs that make calorie information for standardized menu items publicly available (published by or on behalf of the FSE) on or after March 1, 2007, to post such calorie (kcal) information on menu boards and menus, next to each menu item (Figure 1). Of course, in order for the calorie information to be accurate, such a requirement can only be implemented for food items that are standardized with regard to portion size, formulation, and ingredients. Therefore, it is expected that the proposal would apply only to the approximately 10% of New York City food service establishments that serve food menu items in portions that are standardized for size and content and currently post calorie information on these items. Posting of calorie content information will be required for any menu items for which calorie content has been made publicly available. Calorie amounts shall be posted in a size and typeface at least as large as the price or name of the menu item. This provision does not require any FSE to engage in analysis of the nutrition content of its menu items, but does require restaurants that make such information publicly available to their customers to post it in plain sight, so it is available at the time of ordering. By doing so, these FSEs will enable New Yorkers to have the information they need to make more informed choices."

Other jurisdictions are also considering similar legislation including California, District of Columbia, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, New Jersey, Oregon, Pennsylvania, Tennessee, and Vermont. Yet others have been defeated.

Thank you to William Mitchell College of Law student Maureen Ventura, who prepared this post.

February 7, 2008 | Permalink

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