Calorie Information on Fast-Food Menus? More on the Second Circuit Decision Upholding NYC’s Controversial Restaurant Regulation

by Harper Jean Tobin, staff attorney for the Federal Rights Project of the National Senior Citizens Law Center

On Tuesday, the U.S. Court of Appeals for the Second Circuit held that the Nutrition Labeling and Education Act (NLEA) does not preempt New York City’s requirement that restaurant chains post calorie information on their meals. The court held that while NLEA preempts regulation of most nutrition labeling, and of nutrition claims voluntarily made by restaurants, it does not preempt mandatory disclosure requirements for restaurants. The court relied on the presumption against preemption, and stated that the contrary result would render NLEA’s preemption saving clause meaningless. N.Y. State Restaurant Ass’n v. NYC Bd. of Health, No. 08-1892 (2d Cir. Feb. 17, 2009).

The plaintiff, the New York State Restaurant Association (NYSRA), sought declaratory and injunctive relief on the basis that the New York regulation is preempted, and violates the First Amendment. The Food and Drug Administration, former FDA Commissioner David Kessler, Public Citizen, Rep. Henry Waxman, and various medical associations and state and local officials filed briefs supporting the city. This is the second time the NYSRA has challenged the city’s calorie law. In 2007 it was held preempted because, as then written, it was a regulation of nutrient claims. The city then modified its narrower regulation to a broader mandate on all chains, in order to comply with the court ruling.

New York Health Code § 81.50:1 requires chain restaurants to post calorie information on their menus and menu boards. The NLEA, 21 U.S.C. § 343, expressly preempts mandatory nutrition labeling for foods sold between states. Restaurants are specifically exempted from this requirement. However, the Act also expressly preempts regulation of nutrition claims voluntarily made by restaurants. The case therefore turned on whether New York’s regulation was considered a labeling mandate or a regulation of nutrition claim.

The court undertook a detailed statutory analysis, which it said “comes down to this: accepting [the restaurants’] position would render [NLEA’s] exception for preemption meaningless.” The court also rejected the argument that NLEA must preempt to avoid exposing restaurant chains to conflicting local requirements. This, the court says, is the result of Congress’s choice to permit local mandates, and “is not a permissible basis” for preemption.

The court included a somewhat ominous footnote, however, indicating that it had been asked only to decide the question of express preemption, and was therefore not considering any implied preemption arguments. In implied preemption cases such as Geier v. American Honda Motor Co., the Supreme Court has suggested that it may sometimes accept precisely the sort of argument that the Second Circuit here rejects: that due to the need for national uniformity, a clearly stated exception to a preemption clause can be rendered meaningless. Given that NYSRA has already challenged the law twice, the footnote reads as an invitation for a third try. This underscores the need for the Supreme Court to narrow or eliminate the implied “obstacle” preemption doctrine, which as stated in CAC’s brief in Wyeth v. Levine, is inconsistent with the text and history of the Supremacy Clause of the Constitution.