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New York State Restaurant Association v. New York City Board of Health

September 11, 2007


The opinion of the court was delivered by: Richard J. Holwell United States District Judge


In this action, the New York State Restaurant Association ("NYSRA"), a not-for-profit business association of over 7,000 restaurants, challenges a regulation recently enacted by the City of New York. New York City Health Code § 81.50 ("Regulation 81.50") would require New York City restaurants who already make the calorie content information of their menu items publicly available to post such information on their menu boards and menus. This regulation would affect roughly ten percent of restaurants in New York City, including so-called chain restaurants such as McDonald's.

NYSRA argues that this regulation is invalid because it is expressly preempted by the Nutrition Labeling and Education Act of 1990 ("NLEA"), 21 U.S.C. §§ 301, 343, 343-1 (2006). NYSRA also contends that Regulation 81.50 is unconstitutional because the regulation violates its members' First Amendment rights. It has moved for partial summary judgment and declaratory relief on its preemption claim and seeks a preliminary injunction on its First Amendment claim. New York City ("the City"), in turn, seeks summary judgment in its favor on the preemption claim. Appearing as amici curiae are public officials, citizen advocacy groups, non-profit medical associations, law and health professors, cities, counties, and municipal associations, all supporting the regulation.*fn1

For the reasons that follow, the Court concludes that the City has the power to mandate nutritional labeling by restaurants, but that it has done so in a manner that offends the federal statutory scheme for voluntary nutritional claims. Therefore, the City's regulation, as enacted, is preempted by federal law. The Court does not reach the plaintiff's First Amendment claims.


On December 5, 2006, the Department of Health and Mental Hygiene ("the Department") adopted Regulation 81.50. Initially to take effect on July 1, 2007, it applies to standardized menu items "for which calorie content information is made publicly available on or after March 1, 2007." Because its application is limited to restaurants that make public the caloric value of their food, the Regulation only affects an estimated 2,375 food service establishments of more than 23,000 permitted establishments in New York City. (Decl. of Thomas R. Frieden ("Frieden Decl.") ¶ 49.) The regulation requires such restaurants to "post on menu boards and menus the calorie content values . . . for each menu item next to the listing of each menu item . . . in a size and typeface at least as large as the name of the menu item or price, whichever is larger." Where menu items have varying calorie counts depending on flavor and variety, but are listed as a single menu item, the range of values may be listed. Finally, subject to approval by the Department, restaurants may use alternate means of communicating this information to customers provided the display is "at least as prominent." The Department was to begin performing inspections and issuing violations on July 1, 2007, although the City provided a three-month grace period before fines were levied. (Frieden Decl., Ex. 12.) However, in order to allow the issues discussed herein to be more fully briefed, the City agreed to stay the enforcement of Regulation 81.50 until October 1, 2007, including issuing warning letters, notices of violations, and violations. (See June 27, 2007 Stipulation and Order.)

In explaining its policy reasons for issuing Regulation 81.50, the City describes an "obesity epidemic" in America generally, and New York specifically. (Frieden Decl. ¶ 3 (proportion of obese Americans rose from 14.5% in 1971--1974 to 32.2% in 2003-- 2004).) In New York City, more than half of adults are overweight (34.4%) or obese (21.7%). (Id.) People who are overweight or obese are at increased risk of a wide range of serious health problems, including diabetes, heart disease, stroke, and cancer. (Frieden Decl. ¶¶ 9--12.) In addition to human costs, these health problems generate enormous financial costs to society. (Frieden Decl. ¶ 13.) The City contends that calories are the single most important piece of nutritional information related to weight gain, as it results from an imbalance between calories consumed (nutrition) and energy expended (physical activity). (Frieden Decl. ¶ 14, 19--20.) Furthermore, Americans receive an estimated one-third of their caloric intake away from home. (Frieden Decl. ¶¶ 4, 16.) At present, there are no nutrition labeling requirements for restaurants and what nutrition information is voluntarily provided is only seen by a small fraction of restaurant patrons, leading consumers to underestimate the caloric content of their away-from-home meals. (Frieden Decl. ¶¶ 29, 32.) Based on these facts, the City argues that Regulation 81.50 has "substantial potential for public health impact," as consumers are likely to decrease caloric intake and restaurants are encouraged to offer less caloric food options. (Frieden Decl. ¶¶ 49, 50.)

New York City is not alone in this belief. Accompanying an amici brief submitted to the Court were seventeen pieces of legislation passed or being considered by states, counties, and cities that require restaurants to disclose nutrition information. (San Francisco Amici, Exs. A--S.) While some of these bills make the disclosures contingent on the restaurant having already provided voluntary nutrition information, as is the case here, most simply mandate chain restaurants (variously defined) to post nutrition information on their menu boards. As discussed below, this distinction is critical to an analysis of whether such state and local regulations are preempted by existing federal law.

NYSRA, not surprisingly, voices objections to the City's choice of methods for combating obesity, although not the goal itself. First, NYSRA argues that caloric intake is just one component of a healthy lifestyle, and its reduction is not a "magic bullet" to combat obesity. (Pl.'s Mem. of L. in Support ("Mem. of L.") 3.) By posting only caloric content for menu items, the NYSRA suggests that restaurants will be forced to communicate a message with which they disagree, that calories are the only important piece of nutrition information. (Id. at 5, 7.) Second, the NYSRA contends that it is far from clear that consumers will be able to effectively utilize caloric information, or that the method chosen, posting caloric content on menu boards, is a superior means of communicating with patrons. (Mem. of L. 7, 27; Decl. of David B. Allison 24.) The restaurants subject to Regulation 81.50 are already providing comprehensive nutrition information through a variety of methods, including websites, posters, on-package labeling, and tray liners, that the NYSRA suggests are effective. (Mem. of L. 5.) Third, Regulation 81.50 requires restaurants to post caloric content on menu boards, the "most valued space in the restaurant." (Id. at 7.) The NYSRA asserts that by specifying the location and size for such information, the regulation will make menu boards confusing and are likely to adversely impact restaurants to which the regulation applies.

Both parties and amici argue about, and attach voluminous affidavits, declarations, and exhibits devoted to, the wisdom of Regulation 81.50 as an effective means of reducing obesity and improving public health. The initial issue before the Court is not whether this is so, but whether the labeling regulations adopted here are properly within the City's province or exclusively a matter for federal regulation.*fn2

Because the City has chosen a regulatory approach that imposes different obligations than federal regulation of voluntary nutritional claims made by restaurants, the Court is compelled to find that Regulation 81.50 as drafted is preempted by federal law.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Both sides agree that there are no genuine issues as to any fact material to the question of preemption. In this instance, preemption is a legal question for the Court to decide. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 201 (1983) ("The question of pre-emption is predominantly legal."). Therefore, it is ripe for summary judgment.

Plaintiff contends that the NLEA preempts Regulation 81.50. Under the Supremacy Clause, state law*fn3 that conflicts with federal law*fn4 is without effect. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). However, "because the States are independent sovereigns in our federal system, [courts] have long presumed that Congress does not cavalierly pre-empt state-law causes of action." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). Particularly "[i]n areas of traditional state regulation, [courts] assume that a federal statute has not supplanted state law unless Congress has made such an intention 'clear and manifest.'" Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 449 (2005) (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)); see also Medtronic, Inc., 518 U.S. at 485 (where "Congress has legislated . . . in a field which the States have traditionally ...

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