UPDATE: Judge Says States, Cities May Require Nutrition Labeling at Restaurants

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


Edit Your Comment

  1. Yep says:

    Next problem – not enough surface area on the dirty water dog carts to display the list of byproducts and foreign matter contained in each hot dog.

    (They’re still delicious though.)

  2. ghettoimp says:

    Is Chipotle basically saying they don’t know how to write:

    Pork: add X calories, Xg fat
    Hot salsa: add X calories, Xg fat
    Grilled veggies: add X calories
    Guacamole: add X calories, Xg fat

    On a sign?

  3. Buran says:

    As a hearing-impaired individual, I’d be faxing/emailing Surf City, were I a customer needing this info, to tell them that due to their short-sightedness, and lack of caring about their customers’ needs, I will now be patronizing the competition.

  4. Beerad says:

    But isn’t the problem really that these companies are just lying when they say they simply can’t do it? I doubt Wendy’s, Chipotle, and even Surf City Squeeze are going to go out of business when NY passes a revised version of the law that is upheld. They’ll find a way to make it work.

  5. Beerad says:

    But isn’t the problem really that these companies are just flat-out lying when they say they simply cannot comply with the requirement? I doubt that Wendy’s, Chipotle, and even Surf City Squeeze are going to go out of business when NY passes a revised regulation that is upheld. They’ll find a way to make it work.

    Apologies if this is a double post — Consumerist seems to be eating my comments for some reason today.

  6. forever_knight says:

    @Beerad: we appreciate the double posts and apology. keeps us on our toes…you know, just in case, uh, something. (runs out door screaming)

  7. skrom says:

    This is getting ridiculous. If the government had their way we would all be eating whole wheat which tastes like cardboard and vegetables. First its transfats, now they are tricking people into eating healthy. Its extremely hard to even find lard, chocolate milk made with WHOLE milk instead of the watery 2% or skim, heavy cream, etc.. Id rather give up 5 years of my life to eat what tastes good instead of eating tasteless crap just to live another 5 years eating tasteless crap. If it tastes good, it probably isnt healthy but so what!!!!

    Not to mention by putting all this crap on the menu there is less room to list the food or if there is room itll be in size 2 font and old people wont be able to read it.

  8. mrearly2 says:

    It’s such a bunch of crap–the whole idea of displaying how much (potential) energy and alleged nutrition is contained within a food item.
    There wouldn’t be such a problem, in the first place, if most food weren’t processed until it’s non-nutritional / sugary / fatty / poisonous.
    If people could or would confine themselves to simple (whole foods), they would have no need for all this legislation and there would be a lot less worry.

  9. skrom says:


    And they would eat food that tastes like crap

  10. kimsama says:

    @skrom: I invite you to try my pancetta-laden amatriciana pasta if you don’t believe that whole foods can be tasty and savory. Whole food doesn’t mean no fat (it just means no artificial garbage). Yum, pancetta.

    And knowing what the calorie content of food is can only help everyone make better decisions (you can choose the same food, they’re not taking it away; but others might make a different selection once they know how many calories they are actually getting).

    Mmm, now I’m hungry for pasta. Let’s have a spaghetti party, everyone.

  11. skrom says:

    No they arent taking it away but the idea is to persuade people to not eat those things and if enough people dont eat it it WILL go away due to not enough demand. Its a backasswards way of banning these foods

  12. LionelEHutz says:

    This is all the people’s fault for having no self control. You really don’t need 6 of those $1 double cheeseburgers, ok Porky. And ordering a Diet Coke with them looks stupid too.

  13. nequam says:

    @skrom: Skrom, your point relies on the false assumption that other people won’t make the same choice as you (i.e., to eat tasty food despite healthier, but less tasty, alternatives) in the face of nutritional information. You are not unique in making that choice.

    There is evidence that your sky-is-falling predictions won’t bear out: People continue to smoke, and tobacco companies continue to make healthy profits (no pun intended), despite gov’t regulations requiring warning labels.