New York State Restaurant v. New York City Bd.

• Decision Date: 17 February 2009
• Docket Number: Docket No. 08-1892-cv.
• Parties: NEW YORK STATE RESTAURANT ASSOCIATION, Plaintiff-Appellant, v. NEW YORK CITY BOARD OF HEALTH, New York City Department of Health and Mental Hygiene, Thomas R. Frieden, in his official capacity as Commissioner of the New York City Department of Health and Mental Hygiene, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

556 F.3d 114

NEW YORK STATE RESTAURANT ASSOCIATION, Plaintiff-Appellant, v. NEW YORK CITY BOARD OF HEALTH, New York City Department of Health and Mental Hygiene, Thomas R. Frieden, in his official capacity as Commissioner of the New York City Department of Health and Mental Hygiene, Defendants-Appellees.

Docket No. 08-1892-cv.

United States Court of Appeals, Second Circuit.

Argued: June 12, 2008.

Decided: February 17, 2009.

Kent A. Yalowitz and Peter L. Zimroth (Nancy G. Milburn, Brandon C. Cowart, Amalia W. Jorns, on the brief), Arnold & Porter LLP, New York, N.Y., for Plaintiff-Appellant.

Fay Ng, Assistant Corporation Counsel, City of New York (Michael A. Cardozo, Corporation Counsel, Pamela Seider Dolgow, Mark Muschenheim, Assistant Corporation Counsels, City of New York; Thomas Merrill, General Counsel, N.Y.C. Department of Health and Mental Hygiene, on the brief), for Defendants-Appellees.

David S. Jones, Assistant United States Attorney, Southern District of New York, New York, N.Y. (Michael J. Garcia, United States Attorney, James L. Cott, Assistant United States Attorney, Southern District of New York, New York, N.Y.; Gregory G. Katsas, Acting Assistant Attorney General, Douglas N. Letter, Michael E. Robinson, Attorneys, Appellate Staff, Civil Division, U.S. Department of Justice; Thomas R. Barker, Acting General Counsel, Gerald F. Masoudi, Chief Counsel, Food and Drug Division, Karen E. Schifter, Associate

Chief Counsel, Office of the General Counsel, U.S. Department of Health and Human Services, on the brief), for Amicus Curiae U.S. Food and Drug Administration, in support of Defendants-Appellees.

Deepak Gupta, Brian Wolfman, Public Citizen Litigation Group, for Amici Curiae U.S. Congressman Henry Waxman, Former FDA Commissioner David Kessler, Public Citizen, Center for Science in the Public Interest, American College of Preventive Medicine, American Diabetes Association, American Medical Association, American Public Health Association, California Center for Public Health Advocacy, The Medical Society of the State of New York, Trust for America's Health, Professors of Medicine, Nutrition, and Public Health, in support of Defendants-Appellees.

Dennis J. Herrera, City Attorney, Danny Chou, Chief of Complex and Special Litigation, Tara Steeley, Francesca Gessner, Deputy City Attorneys, City and County of San Francisco, CA, for Amici Curiae City and County of San Francisco, CA; Cities of Philadelphia, PA and West Hollywood, CA; Los Angeles County, CA; King County, WA; Montgomery County, MD; National League of Cities, National Association of County and City Health Officials, and International Municipal Lawyers Association; California State Senators Alex Padilla and Carole Migden, California Assembly Member Mark Desaulnier, New York State Assemblyman Felix Ortiz, Chicago Alderman Edward M. Burke, and Washington D.C. Councilmember Phil Mendelson, in support of Defendants-Appellees.

Brian L. Bromberg, New York, N.Y., for Amici Curiae Robert Post, David Boies Professor of Law, Yale Law School; Jennifer L. Pomeranz, Kelly D. Brownell, Rudd Center for Food Policy & Obesity at Yale University, in support of Defendants-Appellees.

Before POOLER, SOTOMAYOR, Circuit Judges, and RESTANI,^* Judge.

POOLER, Circuit Judge:

In this case, the New York State Restaurant Association ("NYSRA"), a not-for-profit business association of over 7,000 restaurants, challenges the constitutionality of New York City Health Code § 81.50, which requires roughly ten percent of restaurants in New York City, including chains such as McDonald's, Burger King and Kentucky Fried Chicken, to post calorie content information on their menus and menu boards. See New York City, N.Y., Health Code tit. 24, § 81.50 (2008) ("Regulation 81.50"). NYSRA contends that Regulation 81.50 is unconstitutional because it is: (1) preempted by federal laws, specifically the Nutrition Labeling and Education Act of 1990 ("NLEA"), and (2) infringes on its member restaurants' First Amendment rights. Proceeding pursuant to our jurisdiction under 28 U.S.C. § 1292(a)(1), we conclude that Regulation 81.50 survives both challenges. As we will explain, the federal statutory scheme regulating labeling and branding of food is a labyrinth and interpreting the statute are a series of agency regulations that sometimes appear to conflict and are difficult to harmonize. It is our view, however, that Congress intended to exempt restaurant food from the preemption sections that are necessary to allow food to be sold interstate. In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments. Furthermore, although the restaurants are protected by the Constitution when they engage in commercial speech, the First Amendment is not violated, where as here, the law in question mandates a simple factual disclosure of caloric information and is reasonably related to New York City's goals of combating obesity.

I. Background

A. Federal Statutory Scheme: the Nutrition Labeling and Education Act of 1990

The Federal Food, Drug, and Cosmetic Act (the "FDCA"), enacted in 1938, generally prohibits misbranding of food. Our discussion focuses on two sections of that act — (q) and (r) — which were added in 1990 through the passage of the Nutrition Labeling and Education Act (the "NLEA"), Pub.L. No. 101-535, 104 Stat. 2353 (1990). The NLEA sought "to clarify and to strengthen the Food and Drug Administration's legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods." H.R.Rep. No. 101-538, at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337.¹

Sections 343(q) and (r) and their related preemption provisions, Sections 343-1(a)(4) and (a)(5), are the statutory bases from which the preemption questions in this case stem. Section 343(q), entitled "[n]utrition information," addresses mandatory information on nutrients, and requires that basic nutrition facts be disclosed for most foods. The general public is well-acquainted with this provision through the "Nutrition Facts" panel on packaged foods that informs buyers of the "the total number of calories" per serving, along with the quantities of various nutrients contained in the foods. 21 U.S.C. § 343(q).² Restaurants, NYSRA's membership, are exempt from Section 343(q)'s mandatory nutrition information labeling requirements; they do not have to attach a Nutrition Facts panel to food they serve. Id. § 343(q)(5)(A)(i).

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Section 343(r), entitled "[n]utrition levels and health-related claims," addresses voluntary information, that is, those claims that a food purveyor may choose to add to its product label about the nutrient content (for example, "low sodium") or health benefits (for example, "fiber reduces cholesterol") of its product. See id. § 343(r). It prohibits the use of terms that "characterize[ ]" the level of any nutrient in a food unless they conform to definitions established by the FDA, and requires that claims about the relationship between nutrients and health conditions be supported by scientific consensus.³ See id.; 21 C.F.R. § 101.14(c) ("FDA will promulgate regulations authorizing a health claim only when it determines . . . that there is significant scientific agreement, among experts qualified by scientific training and experience to evaluate such claims, that the claim is supported by such evidence."). Specifically, that section states that:

A food shall be deemed misbranded [if it]

(A) characterizes the level of any nutrient which is of the type required by [Section 343(q)(1) or (q)(2)] to be in the label or labeling of the food unless the claim is made in accordance with [Section 343(r)(2)], or

(B) characterizes the relationship of any nutrient which is of the type required by [Section 343(q)(1) or (q)(2)] to be in the label or labeling of the food to a disease or a health-related condition unless the claim is made in accordance with [Section 343(r)(3) or (5)(D)].

21 U.S.C. § 343(r)(1)(A)-(B). However, Section 343(r) adds that "[a] statement of the type required by [Section 343(q)] that appears as part of the nutrition information required or permitted by such paragraph is not a claim which is subject to this paragraph." Id. § 343(r)(1). In contrast to Section 343(q), restaurants are not exempt from Section 343(r)'s regulation of "claims." Thus, when a restaurant chooses to "characterize[ ] the level of any nutrient which is of the type required by [Section 343(q)] to be in the label or labeling of the food," id. § 343(r)(1)(A), it must conform to Section 343(r)'s requirements.

The NLEA contains two express preemption provisions relating to both Sections 343(q) and (r). Section 343-1(a)(4), which relates to Section 343(q), preempts any state or local "requirement for nutrition labeling of food that is not identical to the requirement of [S]ection 343(q) . . ., except a requirement for nutrition labeling of food which is exempt under [Section 343(q)(5)(A)(i)]," that is, the restaurant exception. Id. § 343-1(a)(4) (emphasis added).⁴ Section 343-1(a)(5), which relates to Section 343(r), expressly preempts state or local governments from imposing any requirement on nutrient content claims made by a food purveyor "in the label or labeling of food that is not identical to the requirement of [S]ection 343(r) . . ., except a requirement respecting a claim made in the label or labeling of food which is exempt under [S]ection 343(r)(5)(B)." Id. § 343-1(a)(5) (emphasis added);⁵ 21 C.F.R. § 101.13(q)(5)(A). Thus, states are not preempted from adopting nutrition information labeling laws as defined by Section 343(q), but are preempted from adopting nutrient claim laws as defined by Section 343(r).

Though appearing complex, this scheme is simple when...