Appeals court upholds NYC's calories-on-menus requirement

NEW YORK -- A federal appeals court on Tuesday upheld the city's regulation requiring some chain restaurants to post calories on menus and menu boards, saying the rule is a reasonable effort to curb obesity.

A 2nd U.S. Circuit Court of Appeals panel rejected arguments by a state trade group that federal law pre-empted the rule and that the city had violated the First Amendment by forcing its view on restaurant patrons that calories are the most important consideration on a menu.

The three-judge panel ruled that the federal Nutrition Labeling and Education Act was not intended to apply to restaurant food, writing that the city "merely stepped into a sphere that Congress intentionally left open to state and local governments."

The calorie rule, the court wrote, "mandates a simple factual disclosure of caloric information and is reasonably related to New York City's goals of combating obesity."

The court cited research showing consumers typically can't assess how many calories are in food, "a statement which we do not doubt upon being informed ... that a smoked turkey sandwich at Chili's contains 930 calories, more than a sirloin steak, which contains 540, or that two jelly-filled doughnuts at Dunkin' Donuts have fewer calories than a sesame bagel with cream cheese."

New York City is believed to have been the first U.S. city to enact a regulation requiring calories on menus. Since then, California and Philadelphia have passed similar bills.

The city's rule applies to restaurants that are part of chains with at least 15 outlets across the country. Health Commissioner Thomas R. Frieden said Tuesday that most chain restaurants have been in compliance since the city began enforcing the rule in July.

"Consumers are learning more about the food before they order, and the market for healthier alternatives is growing," he said. "We applaud the court for its decision, and we thank the restaurant industry for living by the rules. New Yorkers will be healthier for it."

Rick Sampson, president of the New York State Restaurant Association, said the group is considering an appeal. It represents 7,000 eateries.

Sampson said business has been down at most restaurants since the calorie regulation took effect, but he said much of the decline likely stems from the national recession.

According to the health department, more than half of New Yorkers are overweight or obese. Officials believe the regulation will prevent 150,000 New Yorkers from becoming obese and will stop another 30,000 from developing diabetes and other health concerns over the next five years.

A similar regulation went into effect this month in King County, Wash., which includes Seattle. California will begin requiring its chains to post caloric information next year, but they will be able to provide the information on preprinted brochures or menus until 2011, when the listings will have to be on their menus.

Philadelphia passed a stricter regulation that, beginning next year, will require chains to disclose calories and the amount of saturated fat, trans fat, carbohydrates and sodium in their meals.