History of Menu Labeling Laws
Cities and states are enacting laws that mandate nutritional information be posted on menu boards or on menus. The most common example are laws requiring the calorie content of foods and beverages be posted next to the item on a menu board. Mandated disclosure of nutritional information of menu items promotes informed consumer decision-making and prevents potential consumer confusion. A recent survey found that 80% of Americans want this information.
Laws like this give consumers the option to choose items on the menu that meet their nutritional needs. There is scientific evidence that labels on packaged food are associated with healthier eating. Moreover, studies show that average consumers are unaware of, and incorrectly estimate, the calorie content of food and beverages they purchase. Further, increasingly larger portion sizes in restaurants make it especially difficult for a consumer to guess what is in their food and how many servings a single portion really contains.
The leading public authorities in the United States have all advocated increased disclosure of nutrition information for food and beverages purchased in restaurants. The Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity recommended “increasing the availability of nutrition information for foods eaten and prepared away from home.” The Institute of Medicine likewise recommended that, “[f]ull-service and fast food restaurants should expand healthier food options and provide calorie content and general nutrition information at point of purchase.” The FDA’s Working Group on Obesity explained that “the pervasiveness of the obesity epidemic means that more nutrition information must be presented to consumers in restaurant settings.” The FDA recommended “standardized, simple, and understandable nutritional information, including calorie information, at the point-of-sale in a restaurant setting.” Finally, the AMA’s Resolution of 2007 stated that “our American Medical Association support federal, state, and local policies to require fast-food and other chain restaurants … to provide consumers with nutrition information on menus and menu boards.”
There is virtual unanimity among the nation’s medical and public health organizations on the need to combat obesity by requiring the effective communication of factual nutritional information, and especially calorie information, for food consumed away from home. Jennifer L. Pomeranz and Kelly D. Brownell of the Rudd Center and Robert Post of Yale Law School submitted an amicus brief in the case of New York State Restaurant Association v. New York City et al. (July 2007). The amicus brief was in support of the New York City defendants on the First Amendment challenge by the NYSRA.
San Francisco adopted a menu labeling ordinance on March 24, 2008 that requires chain restaurants to provide consumers with nutritional information about their menu items to enable consumers to make healthier choices. The California Restaurant Association sued San Francisco to prevent the enforcement of the law based on the theory that it is preempted by the Nutrition Labeling and Education Act of 1990 and that it violates the free speech rights of the Restaurants in violation of the United States and California Constitutions. Robert Post of Yale University Law School, and Jennifer L. Pomeranz and Kelly D. Brownell of the Rudd Center submitted an amicus brief in support of San Francisco, focusing on the First Amendment issues.