Food Nannyism Preempted

A federal judge has struck down a bossy New York City regulation that ordered restaurants to list calorie-counts on their menus for each menu item, in the largest type found on the menu. The regulation only applied to the restaurants that had already voluntarily disclosed the calories and nutritional information of their menu items, effectively punishing those restaurants for their previous openness and candor.

The judge held that since federal law regulates voluntary nutritional disclosures, the City could not impose more onerous regulations on them. However, he said that federal statutes would not preempt a city law that evenhandedly required all restaurants to disclose the calories and nutritional content of their menu items.

Left undecided is how the First Amendment would affect mandatory disclosures. Restrictions on commercial speech have to have some justification, although some court decisions suggest that compelled disclosures will be more readily upheld than other restrictions on commercial speech.

If people actually cared about calorie counts, that might lend some support to a disclosure requirement, but unfortunately, most people only pay lip service to keeping their burgeoning weight under control, judging from the fact that ever-increasing obesity rates have risen unabated despite progressively more detailed and prominent nutritional labeling appearing on food items in grocery stores.

Moreover, New York City’s approach — focusing predominantly on bad aspects of a menu item (such as its calorie-count, which must be prominently displayed) rather than its good aspects (such as protein, vitamin, and mineral content) — could itself mislead restaurant customers about which foods to eat.

The fact that a food item has a lot of fat doesn’t make it unhealthy if it has even more protein, as well as vitamins and minerals. A hamburger has much more fat than a bowl of corn does, but it also has much more protein and other nutrients.

Common food superstitions persist despite nutritional labeling of those foods. Potato bags have labels showing that potatoes have only about 100 calories each, and contain 30 or 40 percent of your day’s supply of vitamin C, as well as some protein, vitamins, and minerals, but many people falsely believe that a salad of iceberg lettuce drenched with greasy ranch dressing is healthier than a baked potato with salt and pepper. (French fries are typically unhealthy, but that has to do with the oil added by the frying process, not the potatoes used to make the fries).