Calorie Labeling for Restaurants

Calorie labeling for restaurants has been gaining attention in the public and legal spheres since New York City became the first municipality to adopt regulations requiring menu [Page 76]labeling in 2006. Since then, many other local and state municipalities have adopted or are contemplating similar laws. Furthermore, purposed federal menu labeling legislation is under review at the time of this writing. Regulations for menu labeling vary by location but generally require restaurants to post calorie information for standard items on the menu board, printed menu, individual food tag, drive-through, or some combination of these. Current legislation applies only to chain restaurants, for which two working definitions have been established: restaurant chains with 15 or more locations nationally or restaurant chains with 20 or more locations nationally.

Calorie labeling was introduced as a tool for helping Americans make healthier eating choices and preventing and reducing obesity. As of 2005, nearly one-third of Americans (72 million) were considered obese. Obesity has been linked to higher risk of chronic diseases such as diabetes, hypertension, and cardiovascular disease, leading to a diminished quality of life, ongoing health concerns, and higher rates of mortality.

Americans eat more food away home today than ever before. Studies estimate that Americans consume approximately one-third of their calories away from home. Since this is a significant portion of many Americans’ diets, positive changes could result in significant progress toward a healthier population. Providing caloric and other nutritional information about restaurant food enables consumers to make informed and educated decisions that ideally would lead to healthier eating habits. Healthier eating would, in turn, reduce obesity and chronic disease and help Americans live longer and healthier lives.

New York City was the first municipality to enact menu-labeling laws in December 2006. The New York Board of Health adopted new regulations that amended health code §81.50. The regulations were initially challenged by the New York State Restaurant Association, deemed as preempted based on an existing federal law, revised and again adopted on March 21, 2008. The regulations adopted in 2008 require food service establishments in New York City with 15 or more locations nationally to list calories of standard menu items on the menu board, printed menu, or food tag. Enforcement of these regulations began in May 2008.

The next jurisdiction to adopt menu label regulations was King County (which encompasses Seattle), Washington, in 2008. This was followed by Multnomah County, Oregon, and Westchester County, New York. Next, California became the first state to enact menu-labeling legislation. Oregon, Maine, and Massachusetts followed suit and adopted similar laws soon after. Many other states and municipalities have introduced menu-labeling legislation.

Two proposed menu-labeling acts were introduced in Congress in 2009: the Menu Education And Labeling act (MEAL) and the Labeling Education And Nutrition Act (LEAN). MEAL was originally introduced in Congress in 2003 and would require chain restaurants with 20 or more outlets to provide nutritional information including number of calories and amount of saturated fat, trans fat, and sodium for each standard menu item. Restaurants would be required to list the number of calories on menu boards as well. This act was not passed in the 2003–2004 congressional session. It was reintroduced in the following two sessions and again failed to pass. In 2009, MEAL was introduced again. At the time of this writing, the MEAL Act is still under consideration by Congress. The LEAN Act would similarly apply to chain restaurants with 20 or more outlets nationally. However, restaurants would not be required to list calories on the menu board; instead, restaurants would be required to have caloric information available in the restaurant. Possible locations for caloric information include the menu, menu board, a sign meeting certain requirements, or as a supplement to the menu. Furthermore, LEAN [Page 77]would preempt any current or future local or state laws. LEAN is currently under consideration by Congress as well.

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