Legal Authority for California Local Menu Labeling Laws

1. Legal Authority for CaliforniaLocal Menu Labeling Laws Marice Ashe, JD, MPH January 23, 2008

2. Menu Examples Many thanks to CCPHA for their contribution to these

4. 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 gov’t 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”

5. Background: What is “Preemption?” • Preemption makes invalid an inferior legislative body’s law that is in conflict with a superior legislative body’s law • Federal law can preempt both state law and local law • State law can preempt local law

6. California Specific Issues: Preemption

7. Federal Issues: New York City’s Role • New York City is blazing the legal trail on the two federal issues involving: • 1st Amendment • NLEA preemption

8. 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

9. 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)

10. 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

11. 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!

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

13. 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

14. PHLP Resources

15. 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

16. Contact Information Marice Ashe, JD, MPH Public Health Law & Policy 510-302-3305 mashe@phlpnet.org www.phlpnet.org