Apr 29, 2008 8:16 pm US/Eastern
Appeals Court Allows NYC To Post Calories On Menus
NEW YORK (AP) ―
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The Center for Science in the Public Interest hopes to make calorie and other nutritional information at popular chain restaurants more widely available.
CBS
A federal appeals court let the city proceed Tuesday with ordering some chain restaurants to post calorie counts on menu boards as it decides whether the rule is legal.
The 2nd U.S. Circuit Court of Appeals left room to rule against the city in the future by seeking the Food and Drug Administration's opinion on whether FDA rules let cities dictate what restaurants must tell customers.
The court lifted a stay on the regulation after the city agreed to postpone issuing fines until July 18, long enough for the court to rule on a lawsuit challenging the regulation by the New York State Restaurant Association, an industry group. A lower court upheld the regulation.
The rule applies to restaurants that are part of chains with at least 15 outlets across the country. That includes fast-food places like McDonald's and Wendy's as well as sit-down establishments like Olive Garden and T.G.I. Friday's.
Health officials said about a quarter of the restaurants covered by the regulation, including Starbucks and Chipotle, were already complying.
Restaurant Association lawyer Kent Yalowitz said in a letter to the court Tuesday that the city has made it clear it will use coercive powers to force restaurants to comply. "A stay of fines is no stay at all in these circumstances," he wrote.
Reached after the ruling, Yalowitz said restaurants will have to make their own decisions on whether to comply with the rule right now, and hoped the city would show restraint.
"If they start putting big yellow stickers on people's windows citing violations, to me that would be outrageous. Nobody is saying they're not going to comply if we don't win," he said.
According to the health department, more than half of New Yorkers are overweight or obese. Health officials believe the regulation will prevent 150,000 New Yorkers from becoming obese and will stop another 30,000 from developing diabetes and other health concerns over the next five years.
City Health Commissioner Thomas R. Frieden praised the decision as a major victory, and said chains that haven't yet listed calories have run out of "stalling tactics."
"Some chains have worked hard to deny customers information they need to make healthy food choices, but this decision starts to clear the way for people to have ready access to calorie information when they order their food," he said.
In arguments earlier Tuesday, Yalowitz said restaurants believe federal laws pre-empted local efforts to try to regulate how restaurants describe the contents of their food. He said the First Amendment rights of restaurants protected them as well.
Judge Rosemary Pooler noted that cigarette packages contain health warnings. "If we were to adopt your view, no warnings would ever appear on anything," she said.
(© 2009 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)
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