Judge tosses NYC rule that fast-food joints post calorie counts

~ U.S. District Judge Richard J. Holwell said he determined the rule conflicted with federal law.

NEW YORK -- A judge struck down a New York City rule Tuesday that required fast-food restaurants to post calorie counts on their menus, but he suggested that expanding the rule to include more restaurants could make it legal.

U.S. District Judge Richard J. Holwell said he determined the rule conflicted with federal law. Businesses had claimed that their First Amendment rights were violated by the rule, described as the first of its kind in the nation, but Holwell said he reached his decision without needing to address those claims.

The city had targeted national fast-food chains by applying the law only to those that served standardized portion sizes and that were already making calorie information available voluntarily as of March 1.

Holwell said the city rule conflicted with federal law, which already described how restaurants should post nutritional information if they chose to do so. He said the city rule would not seem to conflict with federal law if it were mandatory both for restaurants that had posted nutritional information and for those that had not.

The Department of Health and Mental Hygiene, which proposed the rule, said the city was considering all legal and regulatory options.

"The actions of these restaurants will deprive consumers of important information for a few months, but we are confident that calorie labeling can be legally mandated by the city and will help New Yorkers be better informed and make healthier choices," department spokeswoman Sara Markt said.

She accused the restaurants of being "so ashamed of what they are serving that they would rather go to court than post calorie information where their customers can actually use it."

Rick Sampson, president of the New York State Restaurant Association, which challenged the rule in court, called the judge's ruling a "major victory for everyone who enjoys New York's world-class restaurant scene."

He said it "strikes a blow against big government trying to tell us what we can or cannot eat."

The National Council of Chain Restaurants, a trade association, said chain restaurants disliked the rule because they do not believe one piece of nutritional information is better or more important than another.

"Chain restaurants will continue to voluntarily provide nutritional information through brochures, posters, tray liners and on the Internet to help customers make educated decisions about what they choose to eat," council president Jack Whipple said.

Groups that support the rule point to obesity rates that have doubled among U.S. adults and tripled among children in the past 25 years, and say more needs to be done to make sure consumers know what they're eating.

The National Association of County and City Health Officials, representing the nation's 2,800 local health departments, said it was "gravely disappointed" by a ruling it called bad for public health.

Public Citizen and the Center for Science in the Public Interest said in a joint statement that the city could salvage the rule by making menu labeling mandatory for all chain restaurants with 10 or more outlets.

The decision "gives cities and states a green light to make nutrition information mandatory at restaurants" by showing that mandatory calorie-posting legislation, such as statewide rules just passed in both houses of the California Legislature, would be legal, they said.

The Centers for Disease Control and Prevention estimated in a 2005 study that approximately 112,000 deaths are associated with obesity nationwide each year, making the condition the second leading contributor to premature death, behind tobacco.

Legislation similar to New York City's is under way in 14 states where obesity rates have recently surged -- Arizona, California, Connecticut, Hawaii, Illinois, Maine, Massachusetts, Michigan, New Jersey, New Mexico, New York, Pennsylvania, Tennessee and Vermont.

Nutrition labeling legislation has also been introduced in Chicago, Philadelphia and Washington.

New York City's rule had taken effect in July, but enforcement had been suspended pending the outcome of the court fight.