It's estimated that New Yorkers gained 10 million pounds throughout the past two years, enough unwanted weight to convince a federal judge that restaurant chains should do more to lighten their patrons' load. Restaurant owners, however, say they are being force-fed an unappetizing regulatory menu as record numbers of Americans--and their employers--suffer the consequences of obesity.
Federal District Judge Richard J. Holwell in April upheld New York's ordinance requiring McDonald's, Burger King, Outback and other restaurant chains with 15 or more outlets across the country to include a calorie count with their menus. The New York State Restaurant Association (NYSRA) filed an immediate appeal, which was pending before the 2nd Circuit at press time.
While the ruling only applies to New York City, the country is watching.
San Francisco and Seattle adopted similar ordinances and other city councils, including Chicago's, have calorie-posting rules under consideration.
And although some restaurant chains have voluntarily adopted calorie-disclosure policies, the industry is vigorously fighting for its right to present that information as it sees fit.
"It's one thing to say, 'We want you to disclose nutritional information because it's important to the customer,'" says Kent Yalowitz, a partner at Arnold & Porter, which represents NYSRA. "It's another thing to say, 'We don't like the way you're telling customers. We want you to cram it down their throats and tell them they've got to think about calories before buying a Big Mac.' [Restaurants] don't want to be told, 'You have to do it our way.' That's the real issue here."
Holwell didn't see it that way in New York State Restaurant Association v. New York City Board of Health. He rejected the NYSRA's argument that federal laws pre-empted local efforts to regulate how restaurants describe the contents of their food. He also said the rights of restaurants were protected by the First Amendment because "the required disclosure of caloric information is reasonably related to the government's interest in providing consumers with accurate nutritional information."
The restaurant association asked the 2nd Circuit to stay enforcement of the ordinance pending the appeal. Instead, the court allowed the city to ticket violators of the ordinance but barred the city from imposing any fines until at least July 18. The 2nd Circuit left the door open to ruling against the city by seeking the Food and Drug Administration's opinion on whether FDA rules allow cities to dictate what restaurants must tell customers. The court will consider the FDA's views in ruling on the NYSRA's appeal.
City officials hailed Holwell's decision as a victory for its effort to reduce the number of New Yorkers who develop obesity, diabetes and other health problems related to consumption of some restaurant fare.
"Some chains have worked hard to deny customers information they need to make healthy food choices, but this decision starts to clear the way," says New York City Health Commissioner Thomas R. Frieden.
But attorneys who represent restaurant owners disagree. "The decision seems discriminatory, and at some level it seems unconstitutional to penalize chains [and not individual restaurant owners]," says Jacqueline Bozzuto, a partner at Lowndes, Drosdick, Doster, Kantor & Reed. She criticized what she calls government's intrusion in the matter of food consumption.
"It has been the restaurant industry's position for a long time," she says, "that people have to take some personal responsibility for what they eat and how much they eat."
Bozzuto and other restaurant-law experts believe NYSRA v. New York City Board of Health brings into play a much bigger issue than how and where calorie counts are posted.
"What does this portend for corporate America in general and the restaurant industry in particular?" says Joyce Mazero, a partner at Haynes and Boone in Dallas. "It's clear that government is getting more involved in the health choices that consumers make."
The New York ruling comes on the heels of some highly publicized unsuccessful lawsuits seeking to hold restaurants responsible for the obesity of their customers. Mazero cites 2003's Pelman v. McDonald's Corp., in which the Federal District Court for the Southern District of New York dismissed a class action suit filed by plaintiffs who claimed McDonald's food led to their obesity.
"Many of the restaurant chains have been ahead of the curve on this issue," Mazero says.
"McDonald's, Dunkin' Donuts and Burger King already disclose caloric and other nutritional information for their products. Many have also sought to introduce healthier menu items, mirroring--and in some instances precipitating--a larger societal trend."
Along with what Yalowitz describes as the philosophical issue involved in Judge Holwell's ruling--companies feeling like "they're being told not only that they have to disclose nutritional information but they have to shout it"--there's the broader issue of national uniformity of nutritional regulations.
"There are more cities and counties that will have other variations, and that's just the beginning," Yalowitz says.
He predicts restaurant chains will have to devote "huge full-time staffs and resources to following regulations around the country, changing their menus to suit the local laws." Some of these local laws might want you to disclose the exact number of calories, some might want you to round up to the nearest 10.
It's the kind of regulatory diet that Yalowitz says restaurant owners will find tough to digest.