Menu Labeling Legislation

Overview

Although consumers can find nutritional information on the product labels of the foods they purchase in grocery stores, this information is typically not readily available in restaurants, where Americans spend an increasing percentage of their food dollars. Menu labeling laws are aimed at remedying this information gap and helping consumers make informed choices about the foods they eat outside of the home.

The underlying premise of menu labeling is that consumers who are educated about the nutritional content of restaurant foods will make healthier choices when eating out, which will lead to decreased caloric intake and the prevention of weight gain. Although many public health experts and advocacy organizations have endorsed menu labeling as a promising obesity prevention strategy, menu labeling legislation has been controversial, and has provoked significant debate in the media, state and local legislative bodies, and in the courts.

Most local menu labeling laws in effect today have faced litigation, or the threat of preemptive statewide legislation.  This underscores the need for menu labeling advocates to be prepared to respond to legal challenges.  For more information about possible legal challenges to menu labeling legislation, please see the web section Common Legal Issues in Obesity Prevention.

Legislation

The Nutrition Labeling and Education Act of 1990 (NLEA) and its implementing regulations require U.S. food manufacturers to disclose certain nutritional information about their products via standardized package labels.  Under federal law, all packaged food labeling adheres to a consistent national scheme and expressly preempts state and local governments from enacting laws that impose nutrition labeling requirements that differ from those in the NLEA.  Still, until recently, the NLEA specifically exempted restaurants.  In 2009, a federal appeals court held that states and localities were free to pass regulations requiring the disclosure of nutritional information on the menus and menu boards of chain restaurants, because the NLEA did not preempt these regulations and they were reasonably related to a legitimate government interest in curbing obesity. 

Things changed in March 2010, when President Obama signed the Patient Protection and Affordable Care Act.  This law, which at the time of writing is in the reconciliation process, includes a section (Section 4205, found on pages 1206-1214 of the new law) that requires chain restaurants consisting of 20 or more outlets nationally to disclose calorie information on menu boards, and make other nutritional information available in written form on the premises. It also imposes certain disclosure requirements on vending machine operators.  This new federal law largely preempts existing state and local menu labeling laws that apply to these chains.  In its current form, the law leaves room for state and local governments to require menu labeling in restaurant chains of less than 20 outlets, unless these chains voluntarily choose to follow the federal law, and it does not preempt state or local requirements relating to food safety warnings. 

Select Menu Labeling Legislation

• Patient Protection and Affordable Care Act
• New York City’s menu labeling regulation, NYC Health Code § 81.50
• California’s menu labeling law, Cal. Health & Safety Code § 114094
• Center for Science in the Public Interest (CSPI), Model Menu Labeling Law

Select Litigation

• New York Rest. Ass’n v. New York City Bd. of Health, 556 F 3d 114 (2d Cir. 2009) (holding that New York City’s calorie labeling regulation was not preempted by the NLEA and did not violate the First Amendment because the regulation was reasonably related to the city’s goal of reducing overweight and obesity).

Select Resources

• Healthy Eating Research, Menu Labeling:  Does Providing Nutrition Information at the Point of Purchase Affect Consumer Behavior (June 2009).
• Urban Institute, Reducing Obesity:  Policy Strategies from the Tobacco Wars (2009).
• Center for Science in the Public Interest, Anyone’s Guess: The Need for Nutrition Labeling at Fast Food and Other Chain Restaurants (2003). 
• Jayachandran Vaiyam, U.S. Dept. of Agriculture, Economic Research Service, Nutritional Labeling in the Food-Away-From-Home Sector: An Economic Assessment (2005).