NYC Restaurant Group Sues Over Nutritional Info Regulation

A NY restaurant trade group is asking a court to outlaw a New York City Heath Board regulation that will require primarily large chain restaurants and fast food outlets, such as McDonald’s and Burger King (who have standard menus,) to display the calorie count of their menu items on the menu.

Only restaurants that already supply nutritional info would be affected by the rule. According to the AP, “The New York State Restaurant Association filed the lawsuit in U.S. District Court in Manhattan, asking that the rule be declared unconstitutional and that it be awarded unspecified damages.” The NYSRA claims that the rule violates the restaurant owner’s First Amendment rights, and discourages restaurants from providing nutritional information for fear they they will be required to post it on the menu.

“This is about a big, powerful government agency trying to micro-manage local businesses and the choices available to New York consumers at their local neighborhood restaurants,” said NYSRA President & CEO Rick Sampson.

Center for Science in the Public Interest Executive Director Michael F. Jacobson, responded in a statement,

“The New York City Board of Health was absolutely right to require certain large restaurant chains to put calorie counts on menu boards. When it goes into effect this measure will be of enormous help to New Yorkers who are watching their weight, or trying to make healthy choices for their children. What does the industry have to fear, other than the fact that some people might get medium sodas instead of large, or regular hamburgers instead of Triple Whoppers? Or, heaven forbid, that restaurants actually compete on the basis of nutrition, and begin to offer more items with fewer calories and more whole grains, fruits, and vegetables?

To claim that nutrition labeling is a violation of the First Amendment is to throw the Constitution into a fryolator until it’s crispy.

The New York City Health Department said in its own statement, “It is unfortunate that some restaurants are so ashamed of what they are serving the public that they would rather go to court than share this information with their customers.”

The health department claims that 1 in 10 restaurants will be subject to the rule, which goes into affect July 1st. They have no plans to expand the calorie requirement to restaurants without a “standard” menu.

We find it rather amusing that fast food and chain restaurants are this terrified of posting basic nutritional information, and that the NYSRA considers McDonald’s a “local neighborhood restaurant.” Couldn’t they have thought of a better way to spin this? Maybe find one of these mythical local restaurant owners who would be affected by the rule and who could then offer quotes to the media?

Or, perhaps they could tell us that zombies and the undead are attracted to information printed on menus and we are in danger of having our brains eaten. We’re not saying we totally agree with this rule, but the NYSRA’s spin is complete crap.—MEGHANN MARCO

Desperate Restaurant Chains Sue NYC Over Diners’ Right to Know [CSPI]
Group Sues NYC Over New Calorie Rules [Forbes]
New York State Restaurant Association Files Suit in Federal Court to Stop NYC Big Government From Interfering with Local Restaurants (.doc) [NYSRA]
(Photo: cmorran123)

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  1. eldergias says:

    If posting nutritional information about the food is a violation of their First Amendment rights, then wouldn’t it also be violating the rights of the food industry to have to put product ingredients and nutritional information on their packaged food? Considering that the DOH won that in the courts, it seems like that precedent should be applicable to this case. I know it is not exactly the same, but the end goal and reason would be the same, the informed choice of the consumer for the safety of their health.

  2. timmus says:

    This whole thing is a mess. I appreciate that New York City has taken interest in nutrition labelling, but the hodgepodge of special rules, exemptions, and signage is a joke. Back to the drawing board, guys.

  3. bnet41 says:

    I think the bigger fear by the organization might be that this rule is a slippery slope.

    Who’s to say next year they don’t require any restaurant with more than 5 locations to post the information, and before you know they require all them. That’s at least how to see the issue.

  4. eldergias says:

    @bnet41: I agree, but I don’t see what’s bad about that. There are only two possible negatives that I can foresee: 1) The initial cost of printing nutritional information for the location. 2) People knowing just how bad the restaurant’s food is for them.

    To defray the cost of number 1, the government could give tax breaks for the costs incurred. As for number 2, this doesn’t seem like it should be something a restaurant should be able to hide behind. Really, do you think “but then consumers will know how big a mistake it is to give me business” is a compelling reason for the government to keep from enacting a law? It would just be a new area of competition, who serves good but healthy food. Also, keep in mind that most people won’t look at the nutrition information anyhow. I remember looking at the McDonald’s nutrition sheet a while ago when I went there, I was shocked but I still got what I wanted based on my taste.

  5. 44 in a Row says:

    Bear in mind that it isn’t just that they have to post nutritional information or make it available, but it has to be printed directly on the menu board in the same size font as the item and price. So there are logistical concerns. For example, how do you do this at McDonald’s, where the menu already fills up four panels? Or how do you do this at Domino’s Pizza, where you’ve got dozens of different options for toppings, crust, and size? The problem, in the bigger picture, is that this regulation only applies to restaurants who are already making this available; what it does, then, is create a perverse incentive for the restaurants to not make information available at all. There’s a reason that Coldstone Creamery took detailed nutritional information off their website; if they had kept it up, they basically would have been required to post calorie information for every possible combination of ice cream flavor and topping, and that’s just not feasible for a menu board.

  6. bnet41 says:

    @eldergias:

    I see a big problem actually. Many restaurants don’t have the very static menu McDonalds and the like have.

    My brother is a professional chef and often edits the menu nightly depending on what he is feeling like being creative with. There are thousands of restaurants here in NYC alone that do that with specials and such every lunch and dinner period.

    Do they need a calorie tester on staff to deal with this?

    For static menu’s it makes sense, but the information is already out there. Most restaurants like to have some wiggle rooms with their menu.

  7. eldergias says:

    @44 in a Row: Ah, I didn’t think they literally had to put it up on the board with the same size as everything else. That is a little crazy. With that in mind I do not see this as a reasonable proposal.

  8. eldergias says:

    @bnet41: I agree, for non-static items this is would be impractical. However, just about every restaurant has set dishes that they keep for a long time, then they have specials that they have for a few days and don’t print in the menu. I think it is reasonable to display the nutritional content of the set items, but would agree with you that it would be far too difficult to require such for the specials.

  9. 44 in a Row says:

    Not to mention, this regulation only applies to restaurants that are already making full nutritional information available, either by their website or by pamphlets/posters in the store. So the NYC Health Department quote is a bit nonsensical; if you’re not “sharing this information with customers” already, you’re not subject to regulation.

  10. anatak says:

    @eldergias:

    Yet they’ll always find room on the menu. for another supersized dripping McGrease berger.

    Doesn’t Subway already do what this regulation is talking about?

  11. Bluefreak says:

    @44 in a Row: Contrary to what Cold Stone Creamery may say on its website (http://www.coldstonecreamery.com/nutrition_ingredients.html), its not that they would have to post every possible combination, but rather they would have to post it for each ingredient and each advertised combination, but not combinations made up by the customers. Otherwise, even McDonalds could make the same argument (e.g. what if a customer asks us to not put tomatoes on their sandwich?).

    Rather, this is a case where Cold Stone Creamery clearly does not want to comply with the NYC regulation, and is therefore withholding this information from its customers in NYC altogether. That is the one argument that the NYSRA actually has right–that this regulation will encourage restaurants to NOT disclose this information, as has already happened for Cold Stone Creamery.

    @bnet41: If you read the post, it only deals with restaurants with standardized menus, and the city has explicitly stated that they have no plan to extend this requirement. Thus, your brother would not be impacted at all.

  12. Bluefreak says:

    Oops, the link formatted wrong — it is [www.coldstonecreamery.com]

  13. @eldergias: Nutritional information is actually fairly difficult to calculate; for a place where everything is standardized, no problem, but for a single, stand-alone restaurant, even if the menu is static, that would be a huge expense.

    I suppose they could hand out lists of “ballpark” figures from standardized lists, so you could look up separately your 6 oz. of chicken and your alfredo sauce and your noodles and make a guess …

    But anyone who cares enough to do that probably can already ballpark their meals in their heads.

    Also, I want to know more at an Applebees or a McFood where parts of the food come prepackaged or preprepared; whereas at my neighborhood Greek place, I can shout, “Hey chef, what oil are you frying with today?” and get an answer.

  14. agent2600 says:

    It should be up to the restaurant if they want to post it or not, it should not be required, ever. could you imagine the amount of money privately owned restaurants would waste having to have there food tested for nutritional information? eldergias, whats the point of having some nutritional information and not the rest, either way it is pointless. And who is to say who has to post it and who doesn’t? If McDonalds has to post it, who says street vendors don’t have to provide it, it should not be required by any means. If people would just stop sitting on there asses all day long watching TV or blogging on the net, you wouldn’t have to worry so much about how much fat you take because you could just burn it off :-), stop blaming the “Evil” Mcdonalds for making unhealthy food, heres a hint, stop eating it!! cook for yourself if you care about the nutritional value, stop being a baby and relying on others to take care of you.

  15. huadpe says:

    @eldergias: The other problem faced in computing even a “standard” menu is the fact that standalone restaurants tend to use REAL FOOD. The amounts vary night to night and dish to dish. This sauce not coming together? Add a pat of butter. Either they lie, or they make bad food.

  16. MentalDisconnect says:

    @agent2600: Well, my BMI is 18.3… is that good enough for you? Or am I still a fatty? I’m just curious though, if everything I buy in the grocery store has nutritional information, how come some restuarants (ones with set menus like Subway and McDonald’s) don’t have basic nutritional information posted? It’s not a concern to me but I see how it can be to some people. Then again, if you’re really concerned about your health you shouldn’t be going there. But some people really don’t know, and might mistakenly believe some of the options are healthy. Honestly, when I go out to eat (usually at a nicer place than McD’s) I like to do it guilt free. In other words, I don’t want to know. I just take it as a treat.

    Now to my pet peeve. Why does everyone assume anyone posting on the internet is fat? Because we’re sitting in front of a computer? Like you’ve never sat down? Anyway, I could be jogging in place right now or doing the “invisible chair”- you never know. We could be young exercise freaks with fast metabolisms who take a break from our 8 hour a day job on our feet by sitting for an hour in front of the computer. Taking a break does not equal fat. Eating tasty food does not equal fat. I think it’s one of those “don’t judge until you see for yourself” kinda things.

  17. clarient says:

    I think this is a fantastic idea. I want to see big bold calorie numbers next to every grease-laden menu item in every fast food joint in this country. People need to see just how detrimental this food can be to your health.

  18. agent2600 says:

    @MentalDisconnect

    It was a joke my friend, a Joke! I was making the point that its not the resturants job to calorie count on behalf of its customers. “…It’s not a concern to me but I see how it can be to some people…” As I said before, if a restaurant wants to provide information to the customers, more power to them, and maybe that could even help drive sales; but if it is a concern of the consumer, and the information is NOT available to them, then here is a great idea, DON’T EAT THERE. No one forces anyone to eat at McDonalds. I don’t get why people feel that just because a company sells products they are suddenly required to provide public services to the world. In the end, any business is in it to make money, not to protect the health of consumers who don’t take the time to research healthy eating on there own. We are turning into a society of dependents that demand to have to have every thing taken care of for us!

  19. brew400 says:

    *hint hint* fast food = i.e. crap-load o’ calories…. dont eat it then, fatass

  20. “but if it is a concern of the consumer, and the information is NOT available to them, then here is a great idea, DON’T EAT THERE.”

    this is some real nonsense. why do you even bother to read the consumerist then?

  21. eldergias says:

    @ Eyebrows McGee and huadpe:

    I would think that “ball park” is good enough. Consider that we already have strict regulations on the food producers in that they have to disclose nutrition facts on the packaging. Since all of the ingredients on a restaurant’s food consists of those food products it shouldn’t be too hard to just add up the things that went into the meal on average.

    I definitely agree that I would rather know the contents of McBurgers, but I would also like to know what is going into my food at other places. I’m trying to be health conscience now, but I don’t know all the nutrition facts about different foods. I know generally what is better and what is worse. But when you get chicken breast somewhere how are you to know if they buttered it before cooking it or other things that can make your food fattier without being terribly noticeable?

    But do you guys think that food producers should continue to have to put nutritional information on their food packages? I’m trying to think of why it’s okay to force food producers to do so and not okay to force restaurants to do so, and I honestly cannot think of a compelling reason.

    As consumers, wouldn’t you prefer to have more information at your disposal about what you are consuming rather than less?

  22. agent2600 says:

    why is it nonsense, your just retarded because your not understanding my point. I’m sorry your to stupid to make your own decisions, think that companies need to bend over backwards for you


    anyway your right eldergias its not fair, and I don’t think companies should be forced to put the food information of there products, any sort of forced disclosure of any time of information is unconstitutional. I think most of you are not getting my point at all. It really doesn’t matter to me either way rather or not the companies provide this information or not. The fact is, forcing anyone to say anything is unconstitutional against the 1st amendment. Should companies probably provide this information, yes, will they? Probably because many people would not want to buy a product without knowing whats in it. should it be required under law? no.

    once again i return to the point that everyone is ignoring, what about street vendors, who is excluded from these required regulations? And is it fair if one food vendors is affected and the other isn’t?

    I’m not going to get into it here, but if you support all this forced disclosure of information whats next? Are we are going to force companies and restaurants to post the directions on how they make there food, so that we know it is prepared safely enough to eat.

  23. eldergias says:

    @agent2600: Would you say that companies being required to put hazard or warning labels on their products is also wrong?

    If you are saying that they should not be required to put anything on they don’t want on their label, it would seem warning notices would be included. But then what about toxic poisonous chemicals such as household cleaners that could kill people? Would you say that it is more wrong to make companies print something on their labels than it is to cause a consumer’s injury or death by the warning’s omission?

    I know this is extreme and you would probably agree that people should be warned of danger, but then that would mean that it would not be wrong every time someone is forced to say anything.

    As for street vendors, I agree with you, it should be all or nothing. Choosing which places must display and which are exempt seems unfair, but then I would say all places should have to display the facts. The first amendment protects what we say (or express) when we say (or express) it, it doesn’t say anything about the protection of not saying something. If that were the case then it would be unconstitutional to make witnesses swear to their testimony on the stand, and that seems really crazy.

  24. Weebot says:

    I’m not even sure that free speech applies in this situtation. Couldn’t the menus be considered commercial speech? If that were the case, the menus would not be subject to constitutional protection, which I think is the justification of the nutritional labels on food.

    However, I am not a lawyer; surely some Consumerist regular would be able to clarify this issue.

  25. Weebot says:

    Errr…it should be “not subject to the same constitutional protection as non-commercial speech.” It would still be entitled to some protection under the law.

  26. agent2600 says:

    well put weebot, i looked into it more and your right.

    and eldergias, your right I kinda over did it (I was just really pissed off at GroceriesCart for what he said.

    I just wonder, how far are we going to take this. When are we going to draw the line and decide were corporate (and/or business) responsibility ends and consumer responsibility begins.

    While I do find this blog interesting I think many readers (such as GroceriesCart) are so caught up in this, every corporation is trying to take advantage of the consumer mentality, that the forget, you are the consumer, you choose to consume, you are the reason these corporations stay in business. Now it would be one thing if McDonalds was selling a big mac saying it was super healthy and a great way to lose weight, but they are not, they are trying to make money, and well, if you choose to eat it, thats your choice, as a consumer.

  27. joe6486 says:

    What a horrible idea. The nutritional information is ALREADY AVAILABLE if you ask for it. So just ask for it, rather than whining to the government to force merchants to post it on their signs. If you don’t like it, eat somewhere else.

    Whoever came up with this is a despicable human.

  28. Bix says:

    “It is unfortunate that some restaurants are so ashamed of what they are serving the public that they would rather go to court than share this information with their customers.”

    pwn3d.