Title: Legal Authority for California Local Menu Labeling Laws
1Legal Authority for CaliforniaLocal Menu
Labeling Laws
- Marice Ashe, JD, MPH
- January 23, 2008
2Menu Examples
Many thanks to CCPHA for their contribution to
these
3(No Transcript)
4Legal 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
5Background 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
6California Specific Issues Preemption
7Federal Issues New York Citys Role
- New York City is blazing the legal trail on the
two federal issues involving - 1st Amendment
- NLEA preemption
8New 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
9New 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)
10SB 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
11Local 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!
12Critical Framing Issue Safety v. Info
Food Safety (limiting danger)
versus
Consumer Disclosure (limiting ignorance)
13Critical 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
14PHLP Resources
15PHLP 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
16Contact Information
- Marice Ashe, JD, MPH
- Public Health Law Policy
- 510-302-3305
- mashe_at_phlpnet.org
- www.phlpnet.org