Restaurants Sue DOH

As Crain's is reporting, the New York State Restaurant Association is suing the NYC Board of Health and the DOH in order to prevent the implementation of "Regulation 81.50," the rule that would require certain restaurants (only the 10% that are chains) to post calorie information on their menus and menu boards. The suit, filed in United States District Court, seeks a restraining order on the city's enforcement of the regulation-a hearing is scheduled for June, 27th.

The legal basis of the suit is twofold: in the first place, arguing preemption, the lawyers at Arnold and Porter say that the federal Nutrition Labeling and Education Act (NLEA) gives exclusive authority to the FDA to regulate the purveying of any nutritional information at "away-from-home" food outlets. Secondly, the suit argues that the rule's rigid requirement violates the free speech rights of the businesses effected, since it compels the fast food outlets to convey a nutritional message that they feel is both misleading and erroneous.

In arguing preemption, the suit contends that only the FDA has the legal authority to implement rules for the dissemination of nutritional information at restaurants. It further points out that the FDA has expressly encouraged a flexibility in the approaches taken by restaurants since, "there is no one 'right way' to communicate this information."

The law suit recreates the arguments that the industry first brought in December when the rule was first promulgated. In particular, it was emphasized at the time, that the narrow focus on calories and the restriction of the regulation to only those restaurants that actually provide nutritional information to their customers, would not enable the city to accomplish its stated goal of reducing obesity.

In addition, it was pointed out that the DOH had absolutely no evidence that calorie posting would be efficacious and lead consumers to make better nutritional choices. As the law suit points out, "In fact, the Department of Health acknowledges that it has no idea whether Section 81.50 would have any effect on health...In response to one of the public comments that it received, questioning whether the Regulation would achieve its stated goal, the Department of Health acknowledged that 'the health impact of calorie labeling will be evaluated...'"

In essence, as the suit argues, the city is attempting a "social experiment" to determine whether the alleged benefits of calorie posting will be borne out in the real world. DOH's ex post fact efficacy study underscores this point; and even the studies that it relies on to "demonstrate" why calorie posting should be tried only indicate that there may be "potential health benefits."

All of the public health authorities (and even the researchers that the city relies on) point out that calorie posting has limitations; yet the DOH's initiative will quell a more comprehensive nutritional information dissemination in favor of a rigid "one size fits all" regulation that will likely confuse much more than it will educate. Meanwhile, if left unimpeded, the regulation will cost NYC businesses over $40 million in compliance costs.

Which is why the legislative initiative of Council Health Chair Joel Rivera made the most sense. The bill, which would replace regulation by legislation-a more appropriate method for something this extreme, would allow restaurants a greater flexibility in getting nutrition facts to their customers, and would also create a methodology whereby restaurants that aren't included in the DOH edict could begin to develop methods to inform their patrons on health.

The Rivera bill, however, was not even accorded a hearing. In essence the Council through its inaction is ceding legislative authority to an unelected board of health. For this and other reasons that we have outlined, the lawsuit by the industry is a welcome breathe of fresh air in a stifling political climate for local businesses.