Judge Tosses NYC Menu Labeling Regulation

UPDATE: Menu labeling isn’t dead yet, the CSPI says the judge objected to an easily fixable condition of the NYC regulation.

The menu labeling controversy got a little more controversial today when a federal judge ruled that NYC could not require fast food restaurants to post calorie information on their menus. From the Associated Press:

U.S. District Judge Richard J. Holwell said he determined the rule conflicted with federal law. Businesses had claimed that their First Amendment rights were violated by the rule, described as the first of its kind in the nation, but Howell said he reached his decision without needing to address those claims.

In the last 25 years, obesity rates have doubled among U.S. adults and tripled among children, and rates have increased in every state in the nation, the groups said.

The Centers for Disease Control and Prevention estimated in a 2005 study that approximately 112,000 deaths are associated with obesity each year, making obesity the second leading contributor to premature death, behind tobacco.

In arguments supporting the city’s rule, the groups argued that an adverse ruling would undermine pending legislation in state and local legislatures around the country.

Legislation similar to New York City’s is under way in 14 states where obesity rates have recently surged – Arizona, California, Connecticut, Hawaii, Illinois, Maine, Massachusetts, Michigan, New Jersey, New Mexico, New York, Pennsylvania, Tennessee and Vermont.

Nutrition labeling legislation has also been introduced in Chicago, Philadelphia and Washington.

New York City’s rule took effect in July, but enforcement was suspended pending the outcome of the court fight.

Initially we thought this rule sounded stupid, but then Subway complied with it rather than join the lawsuit and we saw how useful the idea was, especially for people who are trying to control their weight. Having the calorie information on the menu board makes it easy for consumers to compare menu choices and encourages personal responsibility without limiting choices for people who want as much bacon as possible at all times.

Will Subway continue to provide calorie information on its menu boards even though it doesn’t have to? We hope so.

Judge tosses NYC calorie-posting rule [Citizen-Times] (Thanks, Henry!)


Edit Your Comment

  1. jamesdenver says:

    Good. We don’t need government interference in such mundane issues. If you’re eating a double burger full of sauce and fries, it’s fattening. You don’t need mandatory labels telling you that.

    I’m all for corporate responsibility – but I don’t care to live in a nanny state where the government forces every business to run itself a certain way.

  2. nglatt says:

    Since these businesses are already required to have documentation of nutritional value and distribute it to consumers, it isn’t like they can completely hide the facts. I think Subway would be making a great marketing move to keep the non-required information posted to support their healthy image. It seems to me to be an opportunity for any of the fast food chains to try and steal some of Subway’s market and push toward a more healthy menu and easily inform consumers of the new choices available. After all, this health issue isn’t going to pass over anytime soon.

  3. DeeJayQueue says:

    they already have cursory nutrition info printed on their napkins, I don’t see why they wouldn’t keep touting their “healthiness”

  4. bnet41 says:

    I never liked this rule. As I stated on here before, it wouldn’t be much of a leap for these rules to be applied to other types of restaurants, even single location ones.

    I really don’t think putting that information up there would’ve made much difference. Especially considering it lacks the rest of the nutrition information.

  5. davebg5 says:

    @jamesdenver: Really? So, I guess you already knew that some drinks at Starbucks have more calories than a Big Mac?

    That’s just one example. If this legislation was passed then maybe it would be easier for people to make INFORMED decisions.

    Will it stop obesity? No, of course not. People will still order their double burger w/sauce and fries, despite knowing how bad it is for you. However, for some people it will beneficial.

    Really, I don’t see how anyone could argue that this is a bad thing…unless you work for one of these fast food companies and don’t want your customers to know what they’re paying for.

  6. entitynein says:

    @bnet41: I tend to disagree. Sure, you can look at it in the one way, and say that people will still eat what they’ve always eaten because they know it’s bad for them, but I’d take a different approach: Say you’re in the mall food court… Standing in line, I see that this Big Mac I’m about to order has xxx calories, looking over to the Edo Japan stall, I see that the Yakisoba has 1/10th the calories. Now I can do spot comparisons of the things I have the option to eat, rather than just figuring everything I eat at a fast food joint is going to be bad for me. I’m all for personal responsibility and accountability, but supplying the consumer with more information about the what exactly they’re ingesting can’t be that bad, can it?

  7. Starfury says:

    I think it should be up to the individual business to list calories by their items. If Subway wants to do this, great. I do KNOW that eating an Ultimate Cheeseburger (no mayo/mustard), large curly fries, and a diet coke is bad for me. This is why I have one about once a month.

  8. enm4r says:

    As long as they have the information available in the store, posted on the wall, or available, what is the point of this? Especially because it only includes calories.

  9. skrom says:

    As I said in the other thread this is a stupid law. Anyone who goes to McDonalds knows that everything there isnt good for them. They dont need to clutter up the menus with unnecessary information. All the ones by me have that info in brochures which are placed by the trashcans. If this did accomplish the nanny state’s goal of promoting “healthy eating” then we would all be stuck eating nasty stuff like whole wheat which tastes like cardboard, and “light” foods which are just light on taste, and “fat free” foods which are taste free as well.

    If we want to actually ENJOY our life by eating things we enjoy and like and sacrifice a few years to do it, thats our choice. Im not going to torture myself with eating nasty whole grain and fat free food and veggies just so I can live an extra 5 years torturing myself eating that gargabge. After all why extend your life if you dont enjoy it.

  10. enm4r says:

    @davebg5: Really, I don’t see how anyone could argue that this is a bad thing…unless you work for one of these fast food companies and don’t want your customers to know what they’re paying for.

    I have nothing to do with the fast food industry, but I think it’s a “bad” thing for government regulation on how you present your food on the menu. Should the information be made freely available in person either via a poster, or pamphlet?(not just a redirect to a website. We don’t all have iPhones) Absolutely.

    Why stop with calories? Why not fat? The all popular transfat? Carbs? Or, just present all the information to people who want it…common sense say the latter to me.

  11. not_seth_brundle says:

    @jamesdenver: I agree 100%. If you want nutritional information, you can go to restaurants that provide nutritional information and avoid places that don’t. The free market takes care of this problem beautifully.

  12. jeff303 says:

    @enm4r: Amen. Even as someone who is extraordinarily picky about the composition of his food, I don’t think the government should have anything to do with restaurant nutrition labeling.

  13. bradanomics says:

    I don’t really have a comment on the use of the new menus. But I want to know how in the HELL businesses have “first amendment” rights? It is an entity. It is not a friggin person.

  14. 44 in a Row says:

    I don’t really have a comment on the use of the new menus. But I want to know how in the HELL businesses have “first amendment” rights? It is an entity. It is not a friggin person.

    Corporations are “persons” in most jurisdictions, including under the Constitution.

  15. nequam says:

    Wow! There really is no end to the people who will complain just for the sake of complaining. Let’s take Skrom’s post as an example, because it nicely shows how a person’s agenda substitutes for a cogent complaint. First, Skrom complains about clutter on menus. Clutter on menus?? The terrorists surely have won if that happens. Then, Skrom goes on to rail against some nanny state effort to force paranoid people to eat whole wheat. I don’t see how this leap occurs: from calories on menus to force feeding healthy food. In fact, skrom says: “If we want to actually ENJOY our life by eating things we enjoy and like and sacrifice a few years to do it, thats our choice.” Well, thanks for emphasizing the point of the regulations, which is – after all – to make informed choices by people possible.

    I have yet to hear an explanation about how adding calorie (or other nutri info) to a menu is bad for me as a consumer. People have made the point that the info already is available in fast food places. A valid point, but still not one that demonstrates the supposed horrors of putting it also (or instead) on the menu.

  16. badlydrawnjeff says:

    @bradanomics: Yup, and they’re also simply groups of people.

    Regardless, it’s nice to finally see some common sense out of New York.

  17. davebg5 says:

    @enm4r: Aren’t there already regulations requiring these restuarants to have nutritional info readily available anyway? If that’s the case, then why balk at posting this stuff on the actual menu? It wouldn’t be b/c then it would be easier for the customers to view and let them influence their decisions, which might include not eating there at all, would it?

    Furthermore, the next time you are in a fast food restuarant, try to find that nutritional information. I work in NYC and all I can say is GOOD LUCK. I don’t know if you ever saw the movie “Supersize Me”, but one of the points of the movie was just how poorly (if at all) the nutritional information was on display, either via pamphlets or posters.

    Maybe if these restaurants had done a better job at fulfilling their responsibilities in the first place additional legislation to force their hand wouldn’t be necessary.

    Now, let me put on my tin foil hat and suggest that the reason that they failed to properly make such info available in the first place (and why they fight this now) was b/c they knew how bad their food is for people and didn’t want people to be able to make informed decisions on their own.

  18. entitynein says:

    @not_seth_brundle: “The free market takes care of this problem beautifully.”

    Based on the proliferation of both the quantities and types of fast food available, I’d disagree…

  19. jamesdenver says:

    Yeah it’s not at all a restaurant nutrition issue. I don’t need/want to live in a “nanny state” where I’m told when/how to eat, or forced to wear a bike helmet, or told I can’t cross the street wearing an iPod, or I can’t wear baggy clothes.

    If I want to order a giant fricken piece of cake the size of a fax machine let me do it. (I’ll have cake for 4 days.)

    I can’t stand groups like that and lawmakers who push frivolous (for the consumer/kids) rules into the public eye.

    Being a complete hippie liberal it’s a weird position to take – but I’m a libertarian when it comes to topics like that.

    I think this was the original issue that started it:


  20. Fuzz says:

    I don’t see how having more information about what I put in my body could be anything but a good thing.

  21. jamesdenver says:


    Yup, and if enough people agree then businesses will oblige, and people like you and me will gravitate and support those businesses ensuring their success. All without big brother involved.

    Is there a point to discussing nutrition and portions at restaurants? Sure. But GOVERNMENT regulations and laws should exist to protect people from plummeting elevators, crashing airplanes, and tainted peanut butter. Not things you’re capable of controlling yourself. We’re not a bunch of babies.

    (Again said from a liberal democrat)

  22. davebg5 says:

    @jamesdenver: I’m sorry, but I think laws banning the behavior of private citizens is very different than laws requiring more diclosure from corporate entities.

    Nowhere in the proposed legislation is there anything that would regulate what you can eat, what you can wear or what you can listen to.

  23. davebg5 says:

    @jamesdenver: Here’s the problem w/your “free market” solution.

    Excuse my generalizations, but…the majority of people who eat poorly and frequently visit fast food restuarants are frankly, not very likely to force these companies to do anything. They will continue to stuff their faces.

    Meanwhile, people like myself, who avoid fast food and who go to the gym regularly get the short end of the stick. We help foot the bill for the increased health costs as a result of their behavior/lack of discipline. There are some programs where a fatty can get their stomach stapled on the taxpayer dime. I can’t even use a tax free flex spending account to pay for my gym membership…and to make matters worse, the crooked politicians in NJ passed a law a few months ago to start taxing my gym membership (instaed of, you know, stopping all of the corruption that costs us millions.)

    As such, I think it is the responsibility of the people who make smart diet decisions to try to influence this matter b/c while I am avoiding McD’s, some slob is mainlining a vanilla shake and will eventually take hard earned money out of my pocket.

  24. jamesdenver says:

    Dave I was speaking in general terms. Earlier this year Sen. Carl Kruger wanted to make it AGAINST THE LAW for people to cross the street wearing an iPod. Or a recent squabble down south about banning low worn pants, (so that they show underwear.) Which, like a triple bacon chili-burger, I find tacky and crass, but it’s a stupid trend that will die out.

    We don’t need or want lawmakers making dumb compartmentalized rules and laws governing small or fringe elements of society on a state to state /county to county basis. At least I don’t.

    And consider BNET41’s post. If rules like these jump to independent business owners, and make it more difficult for them to stay afloat among the sea of corporations, I’d strike it down for that reason alone.

  25. entitynein says:

    @jamesdenver: In a utopian society, maybe everyone would be capable of “controlling [themselves].” I’d suggest that gives too much credit to a society which has, countless times, proven its inability to make the most informed decision. Don’t get me wrong, I stand on no pedistal preaching… I’m as guilty as the guy ahead of me at KFC at ordering things which I know I shouldn’t eat, but having the information right there, in big bold letters, might cause me more pause than I would get having to search out and read the nutritional information guide in the store (I mean, let’s face it, if I’m in KFC, it was obvious I was too lazy to make my own chicken, why am I then going to go hunt out a nutritional pamphlet?).

    The fact is, fast food restaurants fought once when the government wanted them to make their nutritional information available. This is more of the same. It’s kind of that, why fight if you have nothing to hide? – type issue. These corporations know the vast majority of us won’t look at a little booklet with numbers, but you can’t help but notice the numbers on a sign you’re looking at when you’re trying to determine if you want the Big Mac or the 20-piece McNuggets pack.

  26. Asvetic says:

    @nequam: Beautifully argued. I don’t see a negative to having calorie information on a menu. Obviously it would help some customers in the decision making process, but it would also open some people’s eyes. I’d be interested in knowing how healthy the “healthy alternatives” are at my local fast food places.

    Plus, if Skrom’s prediction of Whole Wheat bread replacing the standard bun come true, I’d be extremely happy. Really, I’d like to have the choice of Whole Grain alternatives for my sandwiches, and a healthier side dish instead of the oil/salt intense fries. One can only eat so much Subway before they crave a burger now and then, but it be nice if I could find a healthier burger to indulge in.

  27. davebg5 says:

    @jamesdenver: I understand the point you’re trying to make, I just think it’s misplaced in this case.

    Again, the examples you gave were of laws that would prohibit certain behaviors of private citizens. That is very different than the law we are discussing.

    Also, while people who wear their pants around their ankles and those who are offended by it are a “fringe” group, people who are obese are not. Obesity has reached epidemic proportions and anything that can be done to help people make informed decisions is IMO a public health issue.

    Finally, regarding the comment about small businesses being impacted…recently NYC also implemented a law banning trans fat…in all restaurants of all sizes…from McD’s to the corner deli. Nobody went out of business as far as I am aware. So, if changing the actual ingredients of your food didn’t shut the doors, then how exactly would changing the menu do that?

  28. enm4r says:

    Yes, I’ve seen Supersize Me, and yes, he makes a point. Honestly the only restaurant that I know of that pushes this info is Subway, seeing as how it’s on napkins, cups, etc.

    I don’t know what the current regulations are, but I would imagine they are that the information must be present. SO LET’S ENFORCE CURRENT REGULATION. The solution to every problem isn’t “hey lets just create new legislation” everytime something comes up, lets trying enforcing what we have, because it’s more than sufficient.

    I also, because I was bored, went and looked for the info at 3 places in the foodcourt for lunch today. Two places had little sheets of paper that were hanging on the wall, nothing like a huge poster, but I found them easily enough without asking. And Subway, well is Subway, and they love letting you know. This is in downtown Chicago but I’m not sure why location matters, as this should be pretty standard.

    And no tinfoil hat necessary, of course this is because the food is unhealthy. But the regulations are there to make it available, and how many people have you ever seen look? Honestly, today I got looks like “wtf are you doing?” when grabbing the sheets. Customers do not demand this information, I agree, unfortunately.

    It’s not that it’d be bad for the consumer, it’s whether or not this is the governments place. I do not think it is. The information should be made available, the end. If current regulations aren’t being followed, then let’s enforce them. But new regulation is completely unnecessary. Also, why stop with Calories? Who decides what has to go up? What if I want to know what percent of Vitamin A is in something? Carbs? Sat. Fat? The list obviously goes on and on.

  29. davebg5 says:

    @enm4r: The crux of your argument seems to be that it’s not the government’s role to do this. Believe me, I fully understand your libertarian argument and in many cases I’d totally agree w/you, but in this case I just can’t.

    If it were just about some crapper busting fatty fitting into their clothes, I could care less. Unfrotunately, it’s more than that. It is about the health of this country…the health of its citizens and the health of its economy.

    IMO those are two areas where the government should take an interest and action if necessary.

  30. drjayphd says:

    In Subway’s case, since they’ve probably already made the signage, they might as well use ’em. Then it’s another notch in their “see, fast food can be healthy, we help you make healthy choices” belt, which is certainly a selling point that’ll stand out amongst the “But don’t you want more meat? See how it’s falling out of the sandwich and in your doughy laps!” market.

    Although if there was any reason to believe that the laws on the books would ever be enforced better, I’d say to do that.

  31. probablyawkward says:

    @davebg5: I totally agree, and I trend towards being libertarian. If we exist in society where our insurance/tax money goes to dealing with consequences of other people’s unhealthy diet choices, shouldn’t we, at the very least, help educate everyone and cut off obesity and the attendant illnesses at the pass?

    Having said that, I am an educated consumer who had McDonalds for dinner Saturday night even though he should have known better.

  32. enm4r says:

    @davebg5: Unfortunately I’m a cynical libertarian at that, so I’ve all but given up on general public to care about these things.

    Can you pay for your gym membership with a HSA or whatever other type of health savings account you might have? Honestly I never thought about it, now I’m curious.

    My problem also extends to the practical side though, why calories? Sure it’s a variable number, generally speaking lower is better, it’s as good a marker as any, etc etc, but when do we start requiring fat, carbs? Why not sodium? That’s probably the only one I ever even glance at…

    “Fatties” aren’t going to care either way, and maybe seeing a 1000+ calories for a burger will make them choose the 800 calorie alternative, but really is that worth the governmental intervention? My guess is that something like this would work numerically, but the amount would be statistically insignificant in the end. Fatties will still be fat, people who can make a common sense decision will still do their thing, and the little pamphlets will still be sitting on the wall untouched.

  33. ShadowArmor says:

    skrom said: “anyone who eats in Mcdonalds knows the food is unhealthy”

    I disagree here: many people don’t realize that the salads (once they add double dressing, croutons, fried chicken bits, sesame noodles, and extra cheese) are worse for them than the big mac. I feel very bad for the people who think they are “eating healthy” only to discover that they might as well have just gone for the big mac in the first place.

    I’m also a little astounded that it seems many people out there use supersize me as an “anti-McDonalds” platform, not realizing that the same is true of wendys, BK, Chick Fil-A… hell if you eat ANY fast food for 30 days straight you are going to have some health problems.

    The serving sizes can be a huge issue too. Many people don’t realize just how small a serving of something actually is vs what they eat. There is a blog: (portionwatch.blogspot.com) where they show different foods and the actual portion sizes. Those trendy vitamin waters for example — a single bottle is actually 2 and a half portions, not one.

  34. The_Shadow says:

    I’m rather surprised at the persistant ignorance that holds up the idea that “food is bad for you”. Fast food is not inherently bad for a person – just the quantity of fast food that a person chooses to eat can be.

    But even before that – the empty calories found in soda [or fake juices that contain a mere 5%-10% juice and the rest is High Fructose Corn Syrup & water] likely contribute more to the “obesity” problem. 12 oz. of pop typically runs around 130 calories, most people get at least a medium drink with their meal. According to McDonald’s a medium Coca-Cola is 210 calories, one refill bumps you up to over 400 calories. Over 400 calories with no nutritive value.

    Harp on that Quarter Pounder all you want, but at the end of the day you’ve got to shut-up and admit that it provides a genuine meat, bread, and vegetable serving.

    Now I’m not trying to say that pop is inherently bad either – but like any food, whether it’s coming from Pierre’s All-Organic Fine French Dining or Joe’s Speedy Eats – too much, even of a good thing, can be detrimental.

    And when it comes down to it, New York’s proposed regulation is anti-business since individually owned non-chain restaurants would not be required to post the calorie information on their menu. Ignorant consumers [believing themselves informed] would turn their noses up at a 600 calorie meal at McDonald’s for in favor of a 1000+ calorie steak dinner at Delmonico’s. And all because Delmonico’s [being a single non-chain restaraunt] would be exempt from providing calorie information on their menu.

  35. dvdchris says:

    I for one would be glad to see nutritional information required on regular restaurant menus. Who knows how much salt, fat and calories are in that restaurant meal? It can be really hard to judge because you don’t know for a fact exactly how it’s prepared. Often people think they are ordering a healthy sounding meal but it may have far more calories/fat than you are led to believe.

  36. Chicago7 says:

    The questions are:
    How difficult is this to do?
    “Not very”

    Why WOULDN’T they do it as a service?
    “Because their products aren’t as healthy as they make them out to be”

    How does this advance capitalism?
    “The knowledgeable consumer is the best for competition and capitalism.”

  37. Chicago7 says:


    6 ounces of PURE juice has about 100 calories. It’s not just the 10% juice plus fructose syrup that’s bad for you, calorie wise.

    /I gained 20 lbs by switching from Diet Coke to grape juice, orange juice and apple juice.

  38. davebg5 says:

    @enm4r: I have inquired w/the HR dept at a number of employers that I’ve worked for and the answer has always been no, you can’t use an HSA to pay for a gym membership.

    I think you should be able to, but you can’t. It seems from your reply that it might be something that you’d be interested in. How do you reconcile that type of government regulation w/your libertarian principles?

  39. davebg5 says:

    @The_Shadow: Then I’ll say it…SODA IS INHERENTLY BAD FOR YOU. It is the WORST thing on any fast food menu. It is completely devoid of nutritional value.

    I wasn’t always in shape. I was a total fatty who ate at all the fast food slopfests. I also drank a TON of soda. When I decided to finally do something about it I cut down on the soda and fast food (I think I eat fast food once every two or three months when I have a craving or am stuck at a rest stop.) I also joined the gym.

    Within six months I had actually gained five pounds…and gone down three waist sizes.

  40. Weebot says:

    @44 in a Row:

    I don’t think that most first amendment considerations are on the table, since it could reasonably be argued that these would fall under the purview of commercial speech, which isn’t protected to the same degree that noncommercial speech is.

    Plus, if the government already requires the information, wouldn’t they be allowed to regulated how the information is presented? I think that once you’ve crossed that regulatory threshold, debating over whether it’s on a placard or a brochure is just quibbling.

    Tangentially, I asked this in the other thread, but didn’t get an answer: does anyone actually know what the US policy is in regards to the nutritional information that chain restaurants provide? Is it voluntary or mandatory? What are the minimum requirements before you have to supply the information, if it is mandatory? Are there any glaring loopholes?

  41. Whoa says:

    @ShadowArmor: At Trader Joe’s, they sell a lot of nutritious, good-for-you stuff stuff (that still tastes great). But the second-most unhealthy thing I could find in the store when I worked there a few years ago was a salad. The bacon-spinach-cheese monstrosity had 50 grams of fat in it. Only the blue cheese bacon-wrapped burgers had more. Without reading the labels, I never would have suspected exactly how artery-clogging that salad was.

    I see absolutely no difference between the already-required nutrition labels on food and requiring restaurants to provide the same sort of information.

  42. enm4r says:

    @davebg5: I reconcile it because I somewhere there’s a general threshold that is crossed with 1) our tax code, so I don’t mind the tax break and 2) the fact that as you state, “fatties” are getting things paid for left and right, why shouldn’t I be able to remain healthy and fit on that same dollar. If you’re getting your stomach stapled on my dollar, I should be able to go to the gym on yours. Seems common sense to me. If I can pay for transportation with pretax dollars, I should be able to pay for my health. Doesn’t seem like a hard argument to make. But IMO further illustrates how ridiculous taxes our tax code is.

    @Weebot: I’d like to know that as well, but I disagree that it’s just quibbling. The point is that they already provide (in theory) the information, why should it be mandated that they then provide the calories next to the menu? Obviously the entire label wont fit near each item, so why not provide a better way to have access to ALL the nutritional info…like in an easily accessed poster or pamphlet?!