Legal Authority for California Local Menu Labeling Laws

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Legal Authority for CaliforniaLocal Menu
Labeling Laws

• Marice Ashe, JD, MPH
• January 23, 2008

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Menu Examples
Many thanks to CCPHA for their contribution to
these
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(No Transcript)
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Legal Issues for Local Menu Labeling

• 1st Amendment of the U.S. Constitution
• Compelled disclosure of factual information need
  only have a reasonable relationship to an
  appropriate govt purpose
• Preemption by the federal Nutrition Labeling and
  Education Act (NLEA)
• NY Court Only regulations involving voluntary
  menu disclosures are preempted by the NLEA
• Preemption by the CA Retail Food Code
• Formerly the California Uniform Retail Food
  Facilities Law, or CURFFL

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Background What is Preemption?

• Preemption makes invalid an inferior legislative
  bodys law that is in conflict with a superior
  legislative bodys law
• Federal law can preempt both state law and local
  law
• State law can preempt local law

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California Specific Issues Preemption
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Federal Issues New York Citys Role

• New York City is blazing the legal trail on the
  two federal issues involving
• 1st Amendment
• NLEA preemption

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New York City District Court Case

• NYC regulation required chain restaurants that
  voluntarily made nutrition information available
  to customers to post that information in a
  prominent way
• Court held that a regulation targeting only those
  restaurants that voluntarily provided nutrition
  information was preempted by the NLEA

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New York City District Court Case

• Court suggested that a similar regulation
  applying to all chain restaurants would not be
  preempted by the NLEA
• NYC is in the process of passing just such a
  revised regulation
• Court did not rule on the First Amendment claim
  that forcing restaurants to speak (i.e., label)
  violates commercial free speech rights
• Generally considered to be a weak claim (e.g.,
  consider all of the warnings and other labels
  already required by government)

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SB 120 (Vetoed State Menu Labeling)

• SB 120 would have faced the same two
  federal-level legal issues
• Claimed 1st Amendment violations
• Claimed NLEA preemption
• Local Menu Labeling faces an added legal issue
• Claimed preemption by the CA Retail Food Code

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Local Menu Labeling is not Preempted by the
Retail Food Code

• The Retail Food Code expressly preempts local
  control of restaurant food-safety issues
• Vector control, infectious disease, contamination
• The Retail Food Code does not preempt local
  consumer disclosure requirements
• Not directly related to immediate food safety,
  but instead provides consumers with information
  necessary to make healthy choices
• Assumes that everything on the menu is safe to
  eat!

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Critical Framing Issue Safety v. Info
Food Safety (limiting danger)
versus
Consumer Disclosure (limiting ignorance)
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Critical Legal Issues

• Whether or not New York City, the state of
  California, or local CA communities can require
  menu labeling at restaurants is an unresolved
  legal question
• Well funded lawsuits will be brought against the
  first few CA communities that pass a local menu
  labeling law

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PHLP Resources
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PHLP Resources

• PHLP has resources available for local CA
  communities interested in local chain restaurant
  menu labeling laws
• A memo on Local Menu Labeling and California
  State Law Preemption
• A Model California Ordinance Requiring Menu
  Labeling at Chain Restaurants (with Annotations)
  
• Technical assistance is available
• PHLP for legal technical assistance
• CCPHA for state-wide campaign coordination and
  policy assistance

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Contact Information

• Marice Ashe, JD, MPH
• Public Health Law Policy
• 510-302-3305
• mashe_at_phlpnet.org
• www.phlpnet.org