## Facts

- New York City adopted Health Code § 81.50 requiring certain chain restaurants with standardized menu items to post calorie information on menus and menu boards.
- The rule applied to roughly ten percent of New York City restaurants, including major fast-food chains.
- The City adopted the rule as a public-health measure aimed at reducing obesity and diet-related disease by informing consumers at the point of purchase.
- The New York State Restaurant Association (NYSRA), representing thousands of restaurants, challenged the regulation.
- Earlier litigation over a prior version of the rule resulted in a finding of federal preemption, after which the City revised the regulation and made calorie posting mandatory for covered chains.
- The district court upheld the revised regulation, rejecting claims of federal preemption and unconstitutional compelled speech.
- NYSRA appealed an interlocutory order concerning injunctive relief.

## Issues

1. Whether Health Code § 81.50 is preempted by the Nutrition Labeling and Education Act (NLEA) and the Federal Food, Drug, and Cosmetic Act (FDCA), including the NLEA’s express preemption provisions.
2. Whether requiring covered restaurants to disclose calorie counts on menus and menu boards violates the First Amendment as compelled commercial speech.

## Decision

- The Second Circuit affirmed the district court and upheld Regulation 81.50.
- The regulation was not preempted because Congress did not occupy the field of restaurant menu labeling and left room for state and local regulation of restaurant nutrition disclosures.
- The regulation did not violate the First Amendment because it required only a factual, noncontroversial disclosure reasonably related to the City’s interest in combating obesity and was not shown to be unjustified or unduly burdensome.

## Legal Principles

- Federal preemption under the NLEA/FDCA does not extend to all nutrition-related disclosures; where Congress leaves regulatory space for state and local action concerning restaurant food, local disclosure requirements may stand absent direct conflict with federal requirements.
- Compelled disclosure of purely factual, noncontroversial information in commercial contexts is generally permissible if reasonably related to a legitimate governmental interest and not unduly burdensome (commercial-disclosure standard associated with *Zauderer*).
- A government may require point-of-sale factual disclosures to prevent consumer deception or advance other substantial interests, including public health, when the mandate is limited to factual information and does not compel an ideological message.

## Conclusion

The Second Circuit held that New York City could require covered chain restaurants to post calorie information on menus and menu boards because federal nutrition-labeling law did not preempt local restaurant menu-labeling rules and the compelled, factual disclosure satisfied First Amendment standards for commercial disclosures.


N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009)