Vol 22, 2013 Annals of Health Law
LOCAL GOVERNMENT AND THE FOOD SYSTEM
subsequently amended an innovative regulation requiring large chain
restaurants to post calorie information on menus and menu boards ( i.e., menu
labeling).24 The regulation’s goal was to “help guide informed and healthier
food choices, an important step in addressing the obesity epidemic that now
affects millions of New York City residents.”25 Restaurant owners expressed
concerns about the costs of implementation, including expenditures to update
menus and menu boards and to test food items to determine their calorie
content.26 The NYSRA argued that the ordinance was preempted by the
federal Nutrition Labeling and Education Act (“NLEA”), which regulates
claims and information on food packaging. The NYSRA also claimed that
the regulation violated restaurants’ First Amendment speech rights by
impermissibly compelling them “to convey the government’s message
regarding the importance of calories, a message with which they may
A New York district court concluded that New York City’s menu-labeling
regulation was not preempted by the NLEA, nor did it violate restaurants’
First Amendment rights because it compelled them to disclose purely factual
information and was reasonably related to the city’s interest in addressing
obesity by providing consumers accurate nutrition information.28 In 2009, a
federal appellate court upheld this decision.29 While this litigation was
pending, the California Restaurant Association filed similar suits against San
Francisco and Santa Clara County over menu-labeling ordinances.30
Although ultimately unsuccessful, the NYSRA’s lawsuit is emblematic of
how businesses within the food system may challenge local governments’
25. Press Release, New York City Dep’t Health & Mental Hygiene, Board of Health Votes
to Require Chain Restaurants to Display Calorie Information in New York City (Jan. 22,
26. Press Release, Nat’l Restaurant Ass’n, Trans Fat, Menu Labeling Comments
Presented by New York State Restaurant Association at Hearing before New York City
Department of Health and Mental Hygiene (Oct. 30, 2006), http://dev.restaurant.org/
pressroom/print/ index.cfm?ID=1332 (“Finally, the proposal does not take into account the
cost to restaurants to comply with the proposed regulations on menu and menu board labeling.
And the cost could certainly pose a disincentive to providing nutrition information for those
operators that do not currently offer nutrition information and are not covered by this proposal.
The proposal also imposes real costs for restaurateurs for extensive laboratory testing of each
menu item — and each time a new item is added or modified.”).
27. New York State Restaurant Ass’n, 2008 WL 1752455, at *1.
28. Id. at *12–*13.
29. New York State Restaurant Ass’n v. New York City Bd. of Health, 556 F.3d 114 (2d
30. PUB. HEALTH LAW CTR., MENU LABELING LEGISLATION: OPTIONS FOR REQUIRING THE
DISCLOSURE OF NUTRITIONAL INFORMATION IN RESTAURANTS 9 (2009), available at