N.Y. officials deny Wendy's bid to use labeling loophole: White Castle may avoid calorie-posting mandate

Nation's Restaurant News,  March 12, 2007  by Paul Frumkin

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New York -- New York health department officials said actions taken by Wendy's International would not exempt the chain from a new law requiring that its restaurants here post calorie content information directly on menus and menu boards. But similar efforts by White Castle just might work because of their broader scope, they added.

Wendy's removed calorie information from nutrition posters at its outlets throughout the city's five boroughs and posted a message on its website stating that calorie information was no longer available "to residents or customers in New York City" in an attempt to escape the city's looming menu-labeling rules. However, White Castle went a step further, eliminating all nutrition information available to consumers by pulling it from all 403 units nationwide and from its website entirely.

The actions by both Wendy's and White Castle were taken in an attempt to avoid having to comply with a health department rule mandating that operators already offering calorie content information on the Internet, food wrappers, tray liners or in brochures must include it on menus and menu boards beginning July 1.

The health department said the actions by White Castle and Wendy's had not been widely mimicked, and"only a small minority of affected restaurants have stopped posting calorie information in order to avoid posting it prominently [in July], where it can help consumers make more informed choices."

"Though Wendy's has announced that it will take that approach, its calorie content information is still publicly available online, and it is subject to the health code," a spokeswoman from the New York City Department of Health and Mental Hygiene said.

However, the spokeswoman indicated that because White Castle had removed all of its public nutrition information nationwide, it could indeed be exempt.

The new regulation stipulates that any operator already providing calorie information in some public form to its customers after the cutoff date of March i would have to comply with the new code. Both Wendy's and White Castle acted by Feb. 28.

Published reports said the new regulation would impact about 10 percent of New York's more than 24,000 restaurants--most of which would be chains.

The menu-labeling rules were passed in December together with the much-publicized ban on the sale of food containing trans fats in restaurants.

Denny Lynch, a spokesman for Dublin, Ohio-based Wendy's, said new posters offering nutritional content have been substituted in all 53 Wendy's outlets in New York. Since last summer, he said, the 6,700-unit chain has posted nutritional data in its restaurants that included carbohydrates, sodium, fat, cholesterol, calories and other information.

"What we've done in New York is to reprint the posters without calories," he said. "It's just too hard to be able to comply with the [menu labeling] regulations."

Wendy's also has posted a disclaimer on its website saying, "To continue to provide caloric information to residents and customers of our New York City restaurants on our website and on our nutritional posters would subject us to this regulation."

However, Wendy's continued to make calorie-content data available on another area of the chain's website and at other outlets around the country.

Responding to the health department's statement that those actions would not exempt the hamburger chain from the menu labeling code, Lynch said Wendy's has studied the regulations and interprets them differently. But, he added: "We've been talking to the department for a month, and they obviously have their heels dug in. They're refusing to consider any alternatives."

He said Wendy's had shown the nutritional poster it hangs in its restaurants to department officials, and asked that the poster be accepted as a way of complying with the code. "They denied it," he said. "They said it had to be only one way."

"Let's hope someone finds a reasonable solution here," said Lynch, who noted that the chain has been providing nutritional information for 30 years. "The order they're proposing isn't reasonable."

White Castle's website said its nutrition Web page was under construction.

Jamie Richardson, director of marketing for Columbus, Ohio-based White Castle, said the chain had been planning to review its nutritional data and decided to remove it from posters and brochures in all of its 403 outlets nationwide and from its website before March 1. White Castle has 35 restaurants in New York City.

"We wanted to allow ourselves as much flexibility as possible and ultimately work through a solution that is as customer-friendly as possible," he said. "We're not offering nutritional information anywhere in the country. But long term, it's not our intention not to share nutritional information with our customers."

An official at the Washington, D.C.-based Center for Science in the Public Interest called the actions by Wendy's and White Castle "shameful," according to a published report.