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February 17, 2009 3:05 PM

In Blow to Arnold & Porter, Appeals Court Backs Calories-on-Menus Rule

Posted by Zach Lowe

New York City readers, rest assured: You'll still be able to know exactly how many calories are in your Big Macs, Whoppers, and other fast food favorites, thanks to an appeals court ruling that upholds the city's requirement that chain restaurants list calorie counts and other nutritional info on their menus. 

The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit turns back a challenge from Arnold & Porter and its client, the New York State Restaurant Association. The association based its challenge to the rule on one of the hottest topics in law today: preemption. Specifically, the Arnold & Porter team claimed the federal Nutrition Labeling and Education Act of 1990 preempts state and local governments from adopting many independent changes to food-labeling rules.

The judges rejected that argument, saying Congress left room in the federal law for states to act against chain restaurants. (The city's law applies to chains with at least 15 restaurants nationwide.)

Peter Zimroth, the city's corporation counsel under Mayor Ed Koch, led the Arnold & Porter team on the case. Zimroth, who was traveling when contacted by The Am Law Daily, declined to comment because he hadn't yet had a chance to read the opinion carefully yet or confer with the restaurant group.

The case turned on whether calorie counts and nutritional information at restaurants count as "claims" (to which preemption applies) or "information" (to which it does not). In general, claims consist of descriptions of a food's quality--that a particular food, for example, is "heart healthy"--the appeals court opinion says. States generally cannot go beyond federal rules in regulating such claims.

Listings of calories and quantities of fats or carbohydrates, on the other hand, are usually classified as "information," though distinctions between the categories have blurred over the years as Congress and the Food and Drug Administration have issued confusing and sometimes contradictory rulings, the court found. 

That said, the court concluded that calorie displays are more accurately termed "information," and that federal law does not preempt states from applying stiffer standards on such information in chain restaurants.

The ruling affirms a district court judge's decision in 2008.

Kent Yalowitz was also on the case for Arnold & Porter. He did not immediately return a message seeking comment.

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