The National Pulse
Biting Back at Obesity
The Big Apple’s calorie-counting law is staying on the menu
Posted Aug 1, 2009 7:50 PM CST
By Wendy N. Davis
Sip a Starbucks caffe latte and swallow 220 calories. Chomp a McDonald’s sausage McMuffin with egg and engulf 450. Snarf a Burger King Whopper with cheese and mayo and slap on 770 calories.
In addition to the restaurant tab, these are the new numbers greeting fast-food patrons in New York City, thanks to a new health code provision. The measure requires restaurants with 15 or more branches nationally to post calorie counts on menus and menu boards. Restaurants that fail to post the information are subject to a fine between $200 and $2,000.
Public health officials hope the prominent posting of calorie counts will curb the rise in obesity, which plays a role in diabetes and heart disease, among other illnesses. More than half of New York City adults are overweight, according to a 2005 report by the city Department of Health and Mental Hygiene.
FOOD AND FREE SPEECH
Despite the measure’s goals, the New York State Restaurant Association sued to block it, arguing that it violated restaurants’ free speech rights by forcing them to provide particular information. The group also claimed the law was pre-empted by the federal Nutrition Labeling and Education Act of 1990, which requires packaged-food manufacturers to include nutrition information. Restaurants argued that the NLEA applies to them and trumps any state or local laws that are inconsistent with it.
But in February the 2nd U.S. Circuit Court of Appeals at New York City upheld the city’s ordinance. The ruling, New York State Restaurant Association v. New York City Board of Health, marks the first time a federal appellate court has addressed laws requiring the posting of calorie counts. The court rejected both of the restaurant group’s arguments.
The case drew the attention of 13 outside parties who joined in an amicus brief in support of the labeling law, including Rep. Henry Waxman, D-Calif., (who sponsored the Nutrition Labeling and Education Act); Dr. David Kessler, a former Food and Drug administration commissioner; Public Citizen; the Center for Science in the Public Interest; and various medical organizations.
The Food and Drug Administration also filed an amicus brief supporting the New York City law.
Proponents say the law does not impose taxes or offer incentives to change consumer behavior. They decline suggestions that the law is paternalistic.
“All it does is provide people with information so they can make a healthy choice,” says Deepak Gupta, an attorney with Public Citizen, the Washington, D.C.-based law group that wrote an amicus in the case. “If somebody wants to eat the worst on the menu, they’re free to do that.”
But restaurant representatives say there is no proof that informing people about calorie counts would lead to weight loss.
“My personal opinion is that it is a well-meaning effort that is untethered to any science whatsoever,” says Kent Yalowitz, an Arnold & Porter partner who represented the restaurant association.
“It would be great to combat obesity. Everybody’s in favor of combating obesity,” Yalowitz adds. “But typically when one does a public health intervention, one studies the issue and makes a judgment based on actual evidence.”
But even as the New York City case was nibbling its way through the courts, other cities and states across the country enacted their own versions of menu labeling laws. This year alone, new legislation has been introduced in 16 states.
At press time, new calorie-count laws had been implemented in King County in Washington state and in Multnomah County in Oregon. Additionally, the state of California passed a new law, as had four counties in New York state (Albany, Suffolk, Ulster and Westchester), Tennessee’s Davidson County and the city of Philadelphia.
Congress also is considering a national bill that would require all restaurants with 20 or more branches to post calorie information on menus and menu boards. The law would exempt some items, including daily specials, custom orders and some test items.
The current proposal—which was announced by Sens. Tom Harkin, D-Iowa; Tom Carper, D-Del.; and Lisa Murkowski, R-Alaska—marks a compromise between two prior competing bills, known as LEAN (Labeling Education and Nutrition Act) and MEAL (Menu Education and Labeling Act).
Originally, only MEAL would have required restaurants to post the information on menus or menu boards, while LEAN would have allowed the information to appear on other signs, inserts, appendixes or supplemental menus. Public health authorities in New York had said that difference was critical because people are most likely to see information on a menu board or menu.
Given the current hodgepodge of state and city laws, the National Restaurant Association is supporting the federal law, which would pre-empt all local standards. Michael Donohue, spokesman for the group, says it would be easier for restaurants to comply with one nationwide standard than follow different rules in every state. “It gives consumers and restaurants a consistent national standard,” he says.
The menu labeling initiative grew out of a 2006 report by the Keystone Center, a nonprofit environmental group based in Keystone, Colo. In the report, The Keystone Forum on Away-from-Home Foods: Opportunities for Preventing Weight Gain and Obesity, the group recommended that restaurants give consumers caloric information, among other changes.
The study, commissioned by the FDA, says that 64 percent of all Americans are overweight, including 30 percent who are obese. The numbers are based on a person’s body mass index, which is a ratio derived from an individual’s weight and height.
Among the report’s other suggestions were to increase the marketing of low-calorie foods and promote lower-calorie foods like vegetables and fruits.
As for the suggestion of restaurant calorie promotion, the 2nd Circuit agreed that the law was valid because it was reasonably related to a legitimate health aim.
“Although the restaurants are protected by the Constitution when they engage in commercial speech, the First Amendment is not violated; whereas here, the law in question mandates a simple factual disclosure of caloric information and is reasonably related to New York City’s goals of combating obesity,” the court wrote.
The court also rebuffed the pre-emption argument on the ground that Congress “intended to exempt restaurant food from the pre-emption sections.”
“In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments,” the court stated.
The New York State Restaurant Association declined to ask the U.S. Supreme Court to review the case. In New York City, authorities won’t know whether the law can be linked to weight loss until at least 2010. The law didn’t go into effect until last year and its impact won’t be measured until surveys based on 2009 data are complete, which will take until next year.
But preliminary survey data shows that consumers are noticing calorie counts. In April and May of 2008, before the legislation went into effect, only 23 percent of 1,600 people surveyed as they were leaving a chain outlet said they saw calorie information. During that time, some chains offered information about calories, but not on the menu boards. For instance, some establishments printed the number of calories in a hamburger on the bottom of the box.
But in September and October, about 60 percent of people exiting fast-food chains reported seeing calorie information. What’s more, one in four who noticed it said the information affected their purchase.
“It has unquestionably caught the attention and imagination of New Yorkers,” says Dr. Lynn Silver, the health department’s assistant commissioner for the Bureau of Chronic Disease Prevention and Control. “We hear many, many anecdotes of consumers changing their behavior.”
Gupta counters that the government needn’t have definitive proof that public health initiatives will work in advance. “The standard isn’t whether or not it will work, but whether there’s significant evidence that it might work and that the benefits of it outweigh the costs.”