A proposal by Westchester County health officials to require fast-food restaurants conspicuously to post calorie counts on menus and menu boards is opposed by some restaurant owners here and could face a legal challenge by the same state restaurant trade group that recently forced New York City officials to suspend the start of calorie- labeling enforcement in restaurants there.
Dr. Joshua Lipsman, county Health Department commissioner, last week told members of the county Board of Legislators”™ Family, Health and Human Services Committee that the county Board of Health wants legislators to consider mandatory calorie labeling for restaurants serving fixed food portions. The requirement could be enacted either as a sanitary code amendment or as a new county law, he said. Â Lipsman said it would apply to about 10 percent of the approximately 3,000 food service establishments in the county.
The health commissioner described the measure as one of the “small, meaningful steps” in the “wars of attrition” to raise society”™s consciousness about nutritional choices and curb the nation”™s obesity epidemic. Regarding the menu and menu-board posting requirement, Lipsman said information made available at the “point of decision” is most effective with consumers.
“Ultimately, it”™s the KISS approach ”“ Keep It Simple, Sally,” he said.
Dr. Lynn Silver, assistant commissioner of chronic disease prevention and control for the New York City Department of Health and Mental Hygiene, presented the committee a statistics-rich report showing that consumers choose high-calorie items about one-third less often when nutritional information is readily available. One-third of a person”™s caloric intake typically comes from food prepared outside the home, she reported, and eating fast food is directly associated with obesity and being overweight in both children and adults.
Committee Chairwoman Judith A. Myers, who supported the labeling proposal, called it “a nibble” at the obesity problem. “We”™re not looking at banning anything,” she said. “We”™re looking at mandating information.”
Similar to the proposed Westchester County measure, the city”™s regulation, adopted earlier this year but suspended immediately after a federal judge”™s ruling Sept. 11, applied to only about 10 percent of the city”™s 23,000 licensed food service establishments. It applied only to those restaurants, primarily those among the city”™s 45 fast-food chains, that had already voluntarily posted nutrition information for customers and the public.
Posted on company Web sites, brochures or even on food-tray liners, that voluntary information was little seen by customers, Silver said. “It wasn”™t something that was really designed to help you purchase wisely,” she claimed. City officials attempted to standardize the calorie-count presentation in lettering size and location on menus and menu boards.
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The city regulation, however, was challenged in U.S. District Court by the 7,000-member New York State Restaurant Association (NYSRA). Judge Richard J. Holwell agreed with one of the plaintiff”™s arguments and ruled the regulation in its present form was pre-empted by a 17-year-old federal law that more broadly allows restaurants that voluntarily provide nutritional information to decide how and where to post it.
The federal judge, however, also concluded that the city does have the power to mandate nutritional labeling by restaurants. The state of California and King County, Washington, are in the process of adopting their own calorie-labeling requirements for restaurants.
Silver said the city was weighing its options in the wake of the judge”™s enforcement injunction, including a possible court appeal.
Would the restaurant association go to court again to stop Westchester County from enacting a similar calorie-labeling requirement?
“That”™s more of a state issue,” said Richard Stytzer, president of the 200-member Westchester-Rockland chapter of NYSRA and vice president of Antun”™s of Westchester, who serves on the group”™s state board of directors.
Officials at NYSRA”™s Albany and Manhattan offices were attending a National Restaurant Association conference in Washington, D.C., last week and could not be reached for comment by press time.
Stytzer said restaurateurs felt “we shouldn”™t have the government telling us what to do with that.” He said many NYSRA members already are providing nutritional information and encouraging people to “eat healthy.”
Stytzer said the regulation would create “too many liabilities” for restaurant owners if the posted calorie-count information proved inaccurate in some instances. “If the guy in the kitchen just happen to make something different, then it opens up way too many things,” he said.
“You take a small local shop, you try to do that” ”“ calorie-count compliance ”“ “and it”™s going to get very expensive,” Stytzer said. “It”™s going to put a lot of restaurants out of business.”
Gerry Houlihan, co-owner of six Dunkin”™ Donuts restaurants in Westchester County and the Bronx, had not yet posted calories on menu boards at his four Bronx locations when the city regulation was suspended.
“I am against it,” he said of the measure proposed too for Westchester. “I think it really complicates the situation for franchisees and multiple-unit owners. It”™s extremely complicated. It”™s extremely costly. We have to redo menu boards.”
Because of variations in food products used in menu items, “It”™s not accurate,” he said of the calorie labeling. And Dunkin”™ Donuts on its corporate Web site already provides calorie information on all its Dunkin”™ Donuts and Baskin-Robbins products, Houlihan said.
“Personally, I don”™t think there”™s any net benefit to anybody,” he said of the labeling requirement.
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