The CSPI emailed to let us know the reason that the NYC menu labeling regulation got tossed out:

The judge in New York City found that the city’s menu labeling regulation is preempted only in one, easily fixable way.

His only objection was that NYC only applied the regulation to restaurants that already made some nutrition information voluntarily. Elsewhere the judge wrote:

“The majority of state or local regulations–those that simply require restaurants to provide nutrition information–therefore are not preempted,” wrote United States District Judge Richard J. Holwell. “Such regulations impose a blanket mandatory duty on all restaurants meeting a standard definition such as operating 10 or more restaurants under the same name.”

This means that this ruling won’t affect California or other jurisdictions, and that NYC can just redraft to cover all restaurants with 10 or more units.

The way the NYC rule was written was having the unintended effect of compelling restaurants to take down nutritional information from their websites in an attempt to skirt the regulation. Both Wendy’s and Chipotle, for example, either took down information or made it “unavailable” to consumers in NYC.

In fact, Reader Crystal wrote to the Consumerist the other day to complain that “Surf City Squeeze,” took down their nutritional information:

So, this morning I went to look up some nutrition info online for a smoothie place I like to go to called “Surf City Squeeze” They have a button on their site saying “Click here for Nutrition Info” so I click it and up pops a PDF saying…

“Nutritional Information for Consumers in New York City

We regret that we can no longer publicly post nutritional information on our website. This development is a result of the New York City Department of Health’s decision to pass a regulation requiring restaurants that already publicly provide caloric information, to post product calories on their menu boards – using the same type size as the product listing.

We fully support the intent of this regulation; however, due to the amount of menu items we carry, there simply isn’t enough room on our existing menu boards to comply with the regulation. As a result, we will no longer be able to provide nutritional information on our website or to residents and customers of our New York City stores. We regret this inconvenience. If you have questions about this regulation, please contact the New York City Department of Health and Mental Hygiene and refer to Health Code Section 81.50. Nutritional Information for Consumers Residing Outside of New York City For years we have provided nutritional information on our website, however due to New York City Health Code 81.50, we regret that we can no longer do so. Customers residing outside of New York City may contact us at 1-866- 4KAHALA to request nutritional information. ”

Why would the NY nutrition info law cause them to not be able to provide nutrition info on their website? Why can’t New Yorkers get the nutrition info at all? This just doesn’t make sense to me. A law to help consumers access nutritional information more easily is making it much harder for everyone and impossible for some. Any ideas on this?

Hopefully NYC can redraft this regulation and avoid this issue.

States, Cities May Require Nutrition Labeling at Restaurants, Judge Finds [CSPI]
(Photo:Tom Simpson)

PREVIOUSLY: Judge Tosses NYC Menu Labeling Regulation
Wendy’s Sends Scary Legal Threats Over Photoshopped Menu That Includes Calorie Info
Subway Is Not Ashamed: First Fast Food Restaurant To Put Calorie Info On Menus

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