Food labeling

• New York State Restaurant Association v. City of New York City Board of Health 

New York State Restaurant Association v. New York City Board Of Health
2007 U.S. Dist. LEXIS 66935 (S.D.N.Y. 2007)

Issue

The issue in this case was whether a New York City Board of Health regulation requiring certain restaurants to provide nutritional information about their food should be declared invalid on account of preemption by a federal statute and implementing FDA regulations.

AMA interest

The AMA supports governmental policies to require chain restaurants to provide customers with nutritional information.

Case summary

The New York City Board of Health amended the New York City Health Code to require that certain restaurants post the calorie content of their menu items.  The regulation applied only to "menu items that are served in portions the size and content of which are standardized and for which calorie content is [already] made publicly available."  Thus, the regulation applied only to those New York City food service establishments that served food menu items in portions standardized for size and content — in other words — chain restaurants.

The New York State Restaurant Association sued the New York City Board of Health for a determination that the Nutritional Labeling and Education Act of 1990, 21 U.S.C. §§ 301, et seq., ("NLEA") and the implementing FDA regulations preempted the calorie posting regulation.  The restaurant association also claimed that the Board of Health regulation infringed the restaurants’ First Amendment right to Freedom of Speech. 

The District Court held that the New York City calorie posting regulation, as written, was preempted by NLEA and the implementing FDA regulations.  The regulation was deficient because it was drafted too narrowly, in that it applied only to those restaurants that voluntarily chose to disclose calorie content information.  In dictum, the court observed that a more broadly worded regulation might not be preempted.  The court did not reach the First Amendment issue, as this was unnecessary to its decision. 

The Board of Health then passed a new regulation, which is broader than and attempts to cure the infirmities of its predecessor.  The Restaurant Association  brought another lawsuit, to challenge the new regulation.  On April 16, 2008, the trial court entered summary judgment in favor of the Board of Health, finding the new regulation valid.  The Restaurant Association has appealed to the Second Circuit Court of Appeals.

Litigation Center involvement

The Litigation Center, along with the Medical Society of the State of New York (MSSNY) and several other amici, filed amicus curiae briefs in the federal trial court to support the calorie disclosure regulation, both as originally enacted and as revised.  The Litigation Center and MSSNY have joined another amicus brief to support the Board of Health regulation in the Second Circuit appeal.

View the brief that supported the first calorie disclosure regulation (PDF, 950KB).

View the brief that supported the revised regulation (PDF, 162KB).