Photo (cc) pnoeric.
You probably find those calorie counts in chain restaurants, displayed by a local law last year, to be helpful or at least horrifying (670 calories in a Venti Double Chocolaty Chip Frappuccino Blended Creme?). But libertarians hate them and dream of returning to the caveat emptor fast-food world of our forefathers. Yesterday the U.S. Court of Appeals for the Second Circuit handed such people a defeat, ruling that the calorie-display law doesn’t violate the First Amendment.
Yesterday’s appeal ruling by Judge Rosemary Pooler found that, while “It is undisputed that commercial speech is entitled to the protection of the First Amendment… we accord varying levels of protection depending on the type of commercial speech at issue.”
The judge accepted an earlier court’s finding that “regulations that compel ‘purely factual and uncontroversial’ commercial speech are subject to more lenient review than regulations that restrict accurate commercial speech.” She accepted medical and bureaucratic evidence of an “obesity epidemic,” against which, she also found, the free-market efforts of restauranteurs had been “woefully inadequate.” Thus she found the city law a reasonable response to a public health need, and allowed it to stand.
The New York Law Journal reports that the New York State Restaurant Association first brought suit against the Board of Health when it required some restaurants to post calories in 2006. The Association cited the First Amendment and the Federal Nutritional Labeling and Education Act of 1990. The judge at that time declined to rule on the Constitutional issue, but accepted the preemption argument. The city’s 2008 law brought the restauranteurs back to court, and this time the same judge rejected both the preemption and the First Amendment challenge, as well as the Association’s appeal for stay. The calorie tote boards went up in July, and the Association pressed the appeal that was rejected today.