Opposition grows amid spread of menu labeling: congress mulls extension of 1990 statute

Nation's Restaurant News,  March 24, 2008  by Lisa Jennings

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Legal challenges were expected to delay the March 31 implementation of New York City's landmark menu-labeling mandate, but similar legislation gained ground nationwide and in Congress this month as operators decried the snowballing of efforts to force on-menu disclosure of dietary data.

In one such action, lawmakers in San Francisco gave unanimous approval to a menu-labeling requirement that would take effect July 1 at local branches of chain restaurants with at least 20 units in California. A final ratification by the city's Board of Supervisors was expected last week.

Meanwhile, the California Restaurant Association, or CRA, has thrown its weight behind a more flexible menu-labeling bill at the state level that would supersede the stricter disclosure efforts in San Francisco.

Earlier this month in Seattle, King County health officials forged a compromise with the state restaurant association on a menu-labeling regulation that will take effect in August. The new agreement allows more flexibility for restaurateurs to communicate nutrition information through various methods at the point of sale.

Menu labeling also came back to the table in Chicago, where a City Council member offered a revised proposal that would limit the labeling requirement to calorie counts posted by local branches of chains with 15 or more outlets. A previous proposal called for the posting of fat, carbohydrate and sodium data at restaurants with annual sales of $10 million or more.

Menu-labeling legislation is pending in at least eight other states and municipalities, and Sen. Tom Harkin, D-Iowa, introduced federal legislation this month to extend the requirements of the 1990 Nutrition Labeling and Education Act to food sold through restaurants and vending machines.

That bill would require restaurant chains with 20 or more units to make on-menu disclosures of the number of calories, grams of saturated fat, grams of trans fat and milligrams of sodium of all items.

Companion legislation to the Menu Education and Labeling Act, or MEAL Act, is pending in the U.S. House of Representatives, and a similar initiative is being considered in the state Senate in Iowa.

With such legislation proliferating at the city, state and national level, chain restaurant operators said they were taking steps to comply with what would likely be a patchwork of requirements in various jurisdictions.

"For restaurant operators it would be most beneficial if there were one standard that applied everywhere," said Brad Haley, executive vice president for marketing at CKE Restaurants Inc., the Carpinteria, Calif.-based parent of the Carl's Jr. and Hardee's quick-service brands. "It's a very costly and disruptive process, and I'm not sure it will change consumers' behavior."

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New York City was the first to mandate on-menu calorie disclosure, but lawsuits by the state restaurant association have questioned the city's authority to require nutrition disclosure and asserted federal jurisdiction over food labeling.

At press time, restaurant operators in the city were waiting for a decision by U.S. District Judge Richard Holwell, though it was unclear whether possible appeals or injunctions could delay implementation.

No such legal challenge is expected in San Francisco, but state legislation could potentially override local efforts to give consumers more information about dietary matters when dining out.

Under the new San Francisco ordinance, the chain restaurants would be required to post information on calories, fat, carbohydrates and sodium on menus for regularly offered items. Restaurants that use menu boards must post calories, but can make other data available through posters, brochures or other means.

Foodservice outlets offering similar items in different flavors, such as ice cream or doughnuts, could offer a calorie range. Unlike New York's law, the San Francisco ordinance exempts alcoholic beverages.

San Francisco's mandate mirrors another proposal at the state level in California, Senate Bill 1420. Scheduled for a committee hearing March 26, the legislation is virtually identical to a bill adopted by the state Legislature last year that was vetoed by Gov. Arnold Schwarzenegger.

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There's no reason to believe the governor's position has changed about what restaurant operators see as an inflexible mandate, said Lara Diaz Dunbar, the CRA's senior vice president.

An aggressive opponent of last year's vetoed bill, the CRA has "come a long way" by supporting an alternative legislative proposal for menu labeling, she said.

Assembly Bill 2572, introduced by Assemblywoman Nicole Parra, D-Hanford, would allow nutrition disclosure by various means, including posters, countertop mats, brochures or electronic kiosks. At press time, no hearings on that bill were scheduled.

In Washington state, the threat of competing proposals on menu labeling spurred King County health officials to reach a compromise with the state restaurant association, which also was considering a legal challenge.