Court upholds calories on menus

NEW YORK -- A federal appeals court let the city proceed Tuesday with ordering some chain restaurants to post calorie counts on menu boards, but only after the city agreed to postpone issuing fines until mid-July.

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.

In a one-page order, the appeals court said it lifted the stay only after the city agreed to postpone enforcement of the law from June 6 to July 18, long enough for the court to rule on the merits of a lawsuit brought on behalf of the restaurants by the New York State Restaurant Association, an industry group.

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.

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.

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