What's on the Menu?

In what is at first blush somewhat of a convoluted decision, Judge Richard J. Holwell tossed out the city's menu labeling regulation that would have required those fast food restaurants that currently provide nutritional information to their customers-and only those-to post calorie counts on their menus and menu boards. As the NY Times is reporting, Judge Holwell "banned the city from enacting the regulation, but only because federal law already covers some of the same provisions it sought to put in place."

What's curious, however, is the judge's reasoning here: "The judge made the somewhat strange point that the voluntary nature of the regulation was the reason he had tossed it out. The city, he ruled, could have required all restaurants (or, say, all chain restaurants) to post the caloric contents of their dishes, but was not allowed to regulate how those that chose to do so voluntarily went about it."

This doesn't make much sense to us, and seems to open the door to: (a) requiring calorie posting; and, (b) requiring the posting of the calories in a prescribed manner. How this would make the rule more legally palatable isn't really clear, and seems to be the narrowest of technicalities.

The AP story seems to imply a different take on all of this: "Howell said that conflicted with federal regulations because the rule wasn't mandatory for all restaurants. Federal regulations already advise restaurants how to post the information voluntarily." So can the city still narrowly apply its rule to only the chains, or will it have to place all 23,000 city eateries under the law's rubric? We don't really know.

The NY Sun's story adds to this confusion (through no fault of its own): "The ruling suggests that if the city required restaurants to disclose calorie counts in the first place, it could then regulate how the calorie information was displayed. The city is 'free to erect mandatory disclosure requirements,' the ruling said."

All of which elides the key contention made by the city-that the posting of calorie counts would aid in the fight against obesity. This is pure speculation since there is no empirical data that suggests that this outcome is likely. It all amounts to an expensive social science experiment that fails to understand how consumers are currently making their dining choices. Hopefully, we can devise a better way to combat the serious obesity crisis that threatens the health of so many New Yorkers.