Menu Labeling

New York City Sued Over Unconstitutional Menu-Labeling Law

A handful of food-industry groups say an equally bad federal law takes precedence.

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Fast food
Viorel Dudau / Dreamstime

Earlier this month, several food-industry groups sued New York City in an effort to halt Mayor Bill de Blasio's plans to begin enforcing the city's mandatory menu-labeling law next month.

The National Restaurant Association's Restaurant Law Center—along with the Food Marketing Institute, National Association of Convenience Stores, and New York Association of Convenience Stores—filed suit on July 14 in U.S. District Court in Manhattan.

The suit argues the city's menu-labeling law—which I wrote about here in May, before the lawsuit—conflicts with a federal menu-labeling law, passed as part of the Affordable Care Act, even though enforcement of the pertinent portion of that federal law has yet to begin. The plaintiffs contend that under the U.S. Constitution's Supremacy Clause, New York City's "premature enforcement is preempted by federal law."

That conflict is very real. The federal law and New York City law are similar but not identical, something the city admits freely. For example, the federal rules apply to restaurants with 20 or more locations nationwide, while the New York City rules apply to restaurants with 15 or more locations nationwide. And, as the lawsuit states, implementation of the federal rules has been delayed several times—most recently until May 2018—while New York City's rules are set to take effect next month.

These differences matter. When Congress passed the menu-labeling law as part of Obamacare, notes this month's lawsuit, it "prohibit[ed] any state or locality from imposing any food labeling regulation 'that is not identical to'" the federal law.

Nevertheless, Mayor de Blasio announced in May that the city would move ahead with enforcing its rules in part due to perceived federal foot-dragging.

"We can no longer wait for federal action, and urge other cities to follow our lead," de Blasio said.

The mayor's decision to "lead" means the staggering cost of doing business in New York City will rise even more for an estimated 3,000 restaurants there.

Restaurateurs have argued the rules present them with "a legal quandary." Complying with menu-labeling laws is high—up to $1,000 for each menu item, according to the lawsuit. But so too are potential fines for noncompliance. In fact, the lawsuit was filed shortly after Mayor de Blasio announced the city would begin later this summer to issue fines of up to $600 for violations of the rules.

Costs are very much at the heart of the debate over mandatory menu labeling. As I've explained before, the National Restaurant Association pushed for federal law as a way of avoiding the prohibitive costs of complying with potentially hundreds of local and state menu-labeling laws.

In addition to these costs, the very basis of compulsory menu-labeling laws is flawed. While New York City is the scene of compulsory menu labeling's earliest triumph, it's also the site of many of its most public failures. In 2008, the city, under then-Mayor Michael Bloomberg, became the first in the nation to "to require chain restaurants to post calorie information on menus and menu boards." The purpose of the law was to help consumers choose lower-calorie options. But subsequent research on the menu-labeling law—see here, here, here, and here, for starters—has shown it to be ineffective at best, and counterproductive at worst.

Rushing headlong to comply with a federal law that's inherently flawed, still in flux, and which may never take effect—a recent analysis suggests the FDA's delay in implementing the law has called "perhaps its core validity… into public question"—would be foolhardy. But in New York City, the costs of noncompliance with the looming local rules are now an immediate threat.

"Plaintiffs' members should not be forced to alter their business models, or be marked as lawbreakers, because of New York City's ill-considered decision to jump ahead of the national regulatory regime," the lawsuit concludes.

Mandatory menu labeling is itself ill considered. It's an awful idea that no city, no state, and no federal body should embrace.

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  1. Calorie counts… because what goes better with a nice meal than shame and math?

    1. Change “meal” to ‘turbing and I agree.

    2. Sometimes the calorie count has dissuaded me from healthy options. 350 for a meal? F that

      1. Glad I’m not the only one that does this. There’s a salad place near my office, I specifically go to the highest calorie items on the menu. No way I’m spending $11 for a few hundred calories.

    3. I like them. It allows me to easily select the most calorie dense food from the menu.

  2. “…even though enforcement of the pertinent portion of that federal law has yet to begin.”

    Anyone have any idea of how much O-care is yet to actually function and the damage it can add?

  3. As I’ve explained before, the National Restaurant Association pushed for federal law as a way of avoiding the prohibitive costs of complying with potentially hundreds of local and state menu-labeling laws.

    IOW – they sought to capture a regulator at the federal level in order to create an advantage for chain restaurants (financed by Wall St to get their IPO) over mom-and-pop restaurants (who only need to comply with menu laws in the locations where they have restaurants.

    And this is ‘libertarian’ because – multinationals and big companies have always been the source of liberty for the top-down imposed ‘libertarianism’ of Reason/etc.

    1. Are you taking this article to say that they agree with the federal law?

      1. No. But this – an awful idea that no city, no state, and no federal body should embrace can only be resolved one of two ways depending on whether one prioritizes ideology or self-governance.

        Embrace the supremacy clause (to eliminate state/local authority), organize nationally, and then either put in a better federal law or fail to enforce a bad federal law – while obsessing about (and simultaneously accepting the likelihood of) regulatory capture at that level. OR

        Embrace federalism, organize locally to change the local stuff – and accept the reality that some localities will do stupid stuff that has a disparate impact (may even look like protectionism) and that the freedom to do stupid stuff at even the community level is part of the exercise of freedom.

        Linnekin is far better than most others here on this but still. This dilemma is one that neither small-l and big-L libertarians handle well.

    2. I’m not sure Reason or the author is saying it was a good idea, just that it happened. What did you want national chains to do? In our regulations happy government at all levels, you play the game or you go out of business. Maybe they were looking at getting an upper hand at the expense of mom and pop eateries or maybe they just saw the coming storm of local and state regs and laws that would cost the industry billions to comply with. In any case, I didn’t read the statement of fact as any sort of endorsement by Reason.

  4. No worries mate, label all menu items as varying between zero and five thousand calories. Zero if you change your mind and do not eat it after all, five thousand if you buy and eat it with LOTS of sugar.
    (variances for preparation types and condiment usage are allowed by most of these time wasting laws.)

  5. I’m struggling to understand how anyone thinks that restaurant menus have anything to do with a federal law mandating the purchase of health insurance. I mean, I know and I don’t actually need it explained to me. What would you call this on the part of legislators? Stupidity, hubris? It’s overreaching, for sure.

    1. It’s one of the biggest problems with how laws are passed. There is so much ability to pile on barely related amendments that all significant bills balloon to ridiculous size.

    2. Because both relate to having control over you.
      Next question?

    3. It was a law written by Democrats when they had almost unchecked control of the legislative and executive branches and knew this was their best chance for a power grab for the next decade. Stupidity and hubris only begin to describe it.

    4. As if the ACA is the lone example of tacking on riders that have little to do with the core legislation. Where do you think they get all those attack ads? “Senator Smith voted to reduce child health care benefits!!!” No, he voted against some bill whose stated purpose was farm subsidies or gun control or whatever with a last minute rider attached that would increase children’s health care benefits, for example. That’s how things get done in Washington, D.C.

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