FDA backs NYC in dispute over calories on menus
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Sandwich packaging shows its nutritional value at a New York Starbucks. New York has become the first U.S. city to require restaurant chains to display calorie content on menus and packaging.
By Don Emmert, AFP/Getty Images
Sandwich packaging shows its nutritional value at a New York Starbucks. New York has become the first U.S. city to require restaurant chains to display calorie content on menus and packaging.
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NEW YORK (AP) — The Food and Drug Administration believes the city has a right to force chain restaurants to post calorie counts on menu boards, a government lawyer told a federal appeals court on Thursday, but the court did not immediately decide whether it agrees.

The city will begin issuing fines on July 18, although Judge Rosemary Pooler, of the 2nd U.S. District Court of Appeals in Manhattan, questioned the wisdom of doing so in the event she and two other judges rule against the city.

Assistant U.S. Attorney David S. Jones said the FDA did not want to "shackle city and state authorities" from protecting consumers by preventing the enforcement of regulations such as the calorie rule.

The court must decide whether the city acted constitutionally when it required restaurants that are part of chains with at least 15 outlets across the country to post calories on their menu boards.

Because the date of enforcement is only a few weeks away, the appeals court agreed to reconsider whether it should order the city not to enforce the law until it rules. It had earlier let the city go ahead with enforcement after the city promised not to issue fines until mid-July.

The New York State Restaurant Association, an industry group, had asked the court to find that the city could not impose the calorie rule because it interfered with FDA requirements.

The appeals court had asked the FDA to say what it thought about the issue. Government lawyers said in a document submitted on behalf of the agency that the city regulation seemed constitutional because it required an accurate, purely factual calorie disclosure and "addresses a legitimate state interest in preventing or reducing obesity among its citizens."

Restaurant Association lawyer Kent Yalowitz told the court Thursday that the restaurants would prefer to give the kind of thorough nutrient information contained on food packages rather than merely calorie counts.

"It's the state cramming it down their throats, your honor," he said of the city's determination to force people to view calorie counts. "They want the restaurants to shout it at their customers, and they don't want to shout it at the customers."

Pooler questioned whether anything would stop people determined to eat food that might not be healthy for them.

"People are in denial," she said. "They see the item, the ingredients and the price. When they see 1,200 calories, they don't see that."

According to the city health department, more than half of New Yorkers are overweight or obese. Health officials believe the calorie regulation will prevent 150,000 New Yorkers from becoming obese and will stop another 30,000 from developing diabetes and other health concerns over the next five years.

Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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