A three judge panel in Second Circuit upheld a New York City requirement that all chain restaurants list calorie counts and other nutritional information on their menus.
The New York State Restaurant Association challenged the calorie display rule arguing that the federal Nutrition Labeling and Education Act of 1990 preempts state and local governments from adopting changes to food labeling rules. The case turned on whether the required calorie counts were “claims” (preemption would apply) or were “information” (preemption would not apply). Congress has blurred the line between the two categories over the years, but the panel decided that the calorie counts were more like information, that preemption did not apply, and that the NYC rule stands.
According to the NY Times, the restaurant association may ask the panel to reconsider or file an appeal with the United States Supreme Court.
This rule took effect in July of 2008.
Source: Am Law Daily