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C.A.2 (N.Y.),2009.
New York State Restaurant Ass'n v. New York City Bd. of Health
556 F.3d 114 United States Court of Appeals,
Docket No. 08-1892-cv.
Argued: June 12, 2008.
Decided: Feb. 17, 2009.
Background: State restaurant association brought action challenging city law requiring certain restaurants to post
(2) rational basis was the appropriate standard for determining whether city law violated First Amendment's protec-
tion of commercial speech; and
(3) city law was reasonably related to its goal of reducing obesity.
Affirmed.
178k15 k. Misbranding or Want of Notice to Purchasers or Public. Most Cited Cases
Federal Food, Drug, and Cosmetic Act (FDCA) generally prohibits misbranding of food. Federal Food, Drug, and
Cosmetic Act, § 1 et seq., 21 U.S.C.A. § 301 et seq. (FDCA).
[2] Food 178 15
tent claims on restaurant foods, and states and localities may only adopt rules that are identical to those provided in
the NLEA. Federal Food, Drug, and Cosmetic Act, § 403(q, r), 21 U.S.C.A. § 343(q, r).
212k138.1 k. In General. Most Cited Cases
A party seeking a preliminary injunction ordinarily must show: (1) a likelihood of irreparable harm in the absence of
the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the mer-
its to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's favor.
States 360 18.65
360 States
360I Political Status and Relations
360I(B) Federal Supremacy; Preemption
[5] States 360 18.5
360 States
360I Political Status and Relations
360 States
360I Political Status and Relations
360I(B) Federal Supremacy; Preemption
360k18.13 k. State Police Power. Most Cited Cases
92k1600 k. In General. Most Cited Cases
92k1655 k. In General. Most Cited Cases
Disclosure requirements of city law requiring certain restaurants to post calorie content information on their menus
and menu boards were factual, and therefore rational basis, rather than heightened scrutiny, was the appropriate
standard for purposes of determining whether law unconstitutionally burdened commercial speech. U.S.C.A.
Const.Amend. 1.
92XVIII(E)3 Signs
92k1655 k. In General. Most Cited Cases
Food 178 1.6
mainly due to excess calorie consumption, often resulting from meals eaten away from home, that Americans were
eating out more than in the past and when doing so, would typically eat more than they would at home, and in just
one meal ordered in a fast food restaurant one might consume more than the advised daily caloric intake. U.S.C.A.
Const.Amend. 1.
*116 Kent A. Yalowitz and Peter L. Zimroth (Nancy G. Milburn, Brandon C. Cowart, Amalia W. Jorns, on the
David S. Jones, Assistant United States Attorney, Southern District of New York, New York, N.Y. (Michael J. Gar-
cia, United States Attorney, James L. Cott, Assistant United States Attorney, Southern District of New York, New
York, N.Y.; Gregory G. Katsas, Acting Assistant Attorney General, Douglas N. Letter, Michael E. Robinson, Attor-
neys, Appellate Staff, Civil Division, U.S. Department of Justice; Thomas R. Barker, Acting General Counsel, Ger-
ald F. Masoudi, Chief Counsel, Food and Drug Division, Karen E. Schifter, Associate *117 Chief Counsel, Office of
[1] The Federal Food, Drug, and Cosmetic Act (the “FDCA”), enacted in 1938, generally prohibits misbranding of
food. Our discussion focuses on two sections of that act-(q) and (r)-which were added in 1990 through the passage
Sections 343(q) and (r) and their related preemption provisions, Sections 343-1(a)(4) and (a)(5), are the statutory
bases from which the preemption questions in this case stem. Section 343(q), entitled “[n]utrition information,” ad-
dresses mandatory information on nutrients, and requires that basic nutrition facts be disclosed for most foods. The
general public is well-acquainted with this provision through the “Nutrition Facts” panel on packaged foods that
if it is a food intended for human consumption and is offered for sale, unless its label or labeling bears
nutrition information that provides-
(A)(i) the serving size ...,
(B) the number of servings ...,
(C) the total number of calories-
this chapter before October 1, 1990, if the Secretary determines that such information will assist consum-
ers in maintaining healthy dietary practices.
21 U.S.C. § 343(q)(1).
*119
212k138.1 k. In General. Most Cited Cases
A party seeking a preliminary injunction ordinarily must show: (1) a likelihood of irreparable harm in the absence of
the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the mer-
its to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's favor.
States 360 18.65
360 States
360I Political Status and Relations
360I(B) Federal Supremacy; Preemption
[5] States 360 18.5
360 States
360I Political Status and Relations
360 States
360I Political Status and Relations
360I(B) Federal Supremacy; Preemption
360k18.13 k. State Police Power. Most Cited Cases
92k1600 k. In General. Most Cited Cases
92k1655 k. In General. Most Cited Cases
Disclosure requirements of city law requiring certain restaurants to post calorie content information on their menus
and menu boards were factual, and therefore rational basis, rather than heightened scrutiny, was the appropriate
standard for purposes of determining whether law unconstitutionally burdened commercial speech. U.S.C.A.
Const.Amend. 1.
92XVIII(E)3 Signs
92k1655 k. In General. Most Cited Cases
Food 178 1.6
mainly due to excess calorie consumption, often resulting from meals eaten away from home, that Americans were
eating out more than in the past and when doing so, would typically eat more than they would at home, and in just
one meal ordered in a fast food restaurant one might consume more than the advised daily caloric intake. U.S.C.A.
Const.Amend. 1.
*116 Kent A. Yalowitz and Peter L. Zimroth (Nancy G. Milburn, Brandon C. Cowart, Amalia W. Jorns, on the
David S. Jones, Assistant United States Attorney, Southern District of New York, New York, N.Y. (Michael J. Gar-
cia, United States Attorney, James L. Cott, Assistant United States Attorney, Southern District of New York, New
York, N.Y.; Gregory G. Katsas, Acting Assistant Attorney General, Douglas N. Letter, Michael E. Robinson, Attor-
neys, Appellate Staff, Civil Division, U.S. Department of Justice; Thomas R. Barker, Acting General Counsel, Ger-
ald F. Masoudi, Chief Counsel, Food and Drug Division, Karen E. Schifter, Associate *117 Chief Counsel, Office of
[1] The Federal Food, Drug, and Cosmetic Act (the “FDCA”), enacted in 1938, generally prohibits misbranding of
food. Our discussion focuses on two sections of that act-(q) and (r)-which were added in 1990 through the passage
Sections 343(q) and (r) and their related preemption provisions, Sections 343-1(a)(4) and (a)(5), are the statutory
bases from which the preemption questions in this case stem. Section 343(q), entitled “[n]utrition information,” ad-
dresses mandatory information on nutrients, and requires that basic nutrition facts be disclosed for most foods. The
general public is well-acquainted with this provision through the “Nutrition Facts” panel on packaged foods that
if it is a food intended for human consumption and is offered for sale, unless its label or labeling bears
nutrition information that provides-
(A)(i) the serving size ...,
(B) the number of servings ...,
(C) the total number of calories-
this chapter before October 1, 1990, if the Secretary determines that such information will assist consum-
ers in maintaining healthy dietary practices.
21 U.S.C. § 343(q)(1).
*119
