Lawyers for Fast Food Chain Restaurants Assert First Amendment Right to Withhold Nutrition Information from Consumers on Menus
SAN FRANCISCO (July 7, 2008) — City Attorney Dennis Herrera vowed a lean, aggressive defense to a lawsuit filed in Federal Court late last week that seeks to invalidate a San Francisco menu labeling ordinance requiring certain chain restaurants to disclose on their menus the amount of calories, saturated fat, carbohydrates and sodium for each listed item.
Representing chains including McDonald’s and Burger King, the California Restaurant Association’s civil complaint and related filings — which at 59 total pages are nearly as bloated as Burger King’s Triple Whopper Sandwich with Cheese (1,230 calories, 82 grams of fat) — were filed in U.S. District Court for the Northern District of California in San Francisco late Thursday, July 3. The complaint obtained by City officials today alleges that San Francisco’s ordinance violates both a federal statute governing nutrition disclosure standards and the U.S. Constitution’s First Amendment, by compelling speech with which its member restaurants may disagree — arguments Herrera likened to the nutritional merit of a McDonald’s Chocolate Triple Thick 32 ounce shake (1,160 calories, 27 grams of fat).
In addition to a Court declaration that San Francisco’s menu labeling ordinance is unconstitutional, the CRA is seeking blockage of the measure’s implementation in a manner not unlike the kind of arterial obstructions that would likely result from frequent meals of a Quizno’s footlong Tuna Melt (2,090 calories, 175 grams of fat). But a similar effort by CRA’s New York State counterpart failed. In April, U.S. District Court Judge Richard J. Holwell held that New York City’s menu labeling regulation is not pre-empted by federal law, and that “the required disclosure of caloric information is reasonably related to the government’s interest in providing consumers with accurate nutritional information and therefore does not unduly infringe on the First Amendment rights” of affected chain restaurants.
“I think it’s outrageous that fat-peddling chain restaurants are asserting a First Amendment right to keep consumers uninformed about the nutritional contents of their menu items,” said Herrera, calling the irony as rich as an order of Outback Steakhouse Aussie Cheese Fries with Ranch Dressing (2,900 calories, 182 grams of fat). “At a time when public health departments are grappling with the grievous consequences of obesity, diabetes, and other serious health problems, cities like San Francisco are justified to take steps that enable residents to make healthier choices. The City’s menu labeling ordinance does not ban or restrict a single food item — it is simply requires that consumers have better data to make informed choices.”
San Francisco’s ordinance was passed with unanimous support of the San Francisco Board of Supervisors on March 18, 2008, and signed into law by Mayor Gavin Newsom on March 24, 2008. Notably, the Golden Gate Restaurant Association, which represents San Francisco Bay Area restaurants, did not oppose the measure. The law amends the San Francisco Health Code to require chain restaurants to disclose, per standard menu item, the total number of calories on menu boards and food tags; to revise existing requirements for providing nutritional information on alternative disclosure media; and to authorize the Department of Public Health to impose a fee on chain restaurants for implementation of the ordinance.
Public opinion polls have shown consistent support for menu labeling requirements like those in New York City and San Francisco, with favorable responses nowhere more pronounced than in California. A 2007 study by the California Center for Public Health Advocacy found 84 percent of respondents in support of “requiring fast-food and chain restaurants to post nutrition information on their menus.”
Copies of the CRA’s complaint and related documents are available on the City Attorney’s Web site at the following URL:
The case is California Restaurant Association v. City and County of San Francisco et al, U.S. District Court for the Northern District of California, Case No. 08-3247.