IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF NEW YORK 

NEW YORK STATE RESTAURANT 

ASSOCIATION, 

Plaintiff, 

v. Case No. 1:07-cv-05710 (RJH) 

NEW YORK CITY BOARD OF HEALTH, 

NEW YORK CITY DEPARTMENT OF HEALTH 

AND MENTAL HYGIENE, and THOMAS R. 

FRIEDEN, in his official capacity as Commissioner 

of the New York City Department of Health 

and Mental Hygiene, 

Defendants. 

_________________________________________________________________________ 

MOTION OF U.S. REPRESENTATIVE HENRY WAXMAN, 

FORMER FDA COMMISSIONER DAVID KESSLER, 

PUBLIC CITIZEN, CENTER FOR SCIENCE IN THE PUBLIC INTEREST, 

AMERICAN COLLEGE OF PREVENTIVE MEDICINE, 

AMERICAN DIABETES ASSOCIATION, 

AMERICAN MEDICAL ASSOCIATION, 

AMERICAN PUBLIC HEALTH ASSOCIATION, 

CALIFORNIA CENTER FOR PUBLIC HEALTH ADVOCACY, 

THE MEDICAL SOCIETY OF THE STATE OF NEW YORK, 

TRUST FOR AMERICA’S HEALTH, AND 

PROFESSORS OF MEDICINE, NUTRITION AND PUBLIC HEALTH 

FOR LEAVE TO FILE A BRIEF AS AMICI CURIAE 

IN SUPPORT OF DEFENDANTS 

_________________________________________________________________________ 

The individuals and organizations listed below hereby request leave to file the 

accompanying brief as amici curiae in support of defendants New York City Board of Health, 

New York City Department of Health and Mental Hygiene, and Health Commissioner 

Thomas R. Frieden. 

The principal purpose of amici’s brief is to assist the Court in understanding the 

statutory and regulatory framework created by the Nutrition Labeling and Education Act of 

1990 (NLEA), Pub. L. No. 101-535, 104 Stat. 2535 (1990), and to explain why the Act does 

not preempt New York City’s calorie labeling rule. Because the New York State Restaurant 

Case 1:07-cv-05710-RJH Document 26 Filed 07/16/2007 Page 1 of 8
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Association’s express and implied preemption arguments rest on a fundamental 

misunderstanding of the NLEA, amici include an explanation of the Act’s basic structure and 

of Congress’s conscious decision not to preempt state law requirements for nutritional 

labeling of restaurant food. In addition, amici briefly touch on the sweeping implications of 

the Restaurant Association’s novel First Amendment theory. The identity and interest of the 

amici curiae are as follows: 

U.S. Representative Henry Waxman was the chief sponsor of the NLEA in the 

U.S. House of Representatives and has long been a leader in Congress on nutrition and food 

policy issues. He has represented California’s 30th District since 1974 and is currently the 

Chairman of the House Committee on Oversight and Government Reform, which has 

oversight authority over all federal agencies, including the U.S. Food and Drug 

Administration. 

David A. Kessler was appointed Commissioner of the U.S. Food and Drug 

Administration by President George H.W. Bush in 1990. He was sworn in as Commissioner 

on the same day that President Bush signed the NLEA into law, was reappointed by President 

Clinton, and served through 1997, when he became Dean of the Yale School of Medicine. 

Dr. Kessler is currently Dean and Vice Chancellor for Medical Affairs at the University of 

California, San Francisco. Prior to his tenure at FDA, Dr. Kessler, who is also a lawyer, was a 

lecturer in food and drug law at Columbia Law School. 

Public Citizen is a non-profit consumer advocacy organization with a longstanding 

interest in fighting exaggerated claims of federal preemption of state health and safety 

regulation and defending consumers’ rights to know information that affects their health. 

Public Citizen’s lawyers have represented parties and amici in the most significant federal 

preemption cases, see e.g., Riegel v. Medtronic, -- S.Ct. --, cert. granted, June 25, 2007; Bates v. Dow 

Case 1:07-cv-05710-RJH Document 26 Filed 07/16/2007 Page 2 of 8
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Agrosciences, 544 U.S. 431, 449 (2005); Medtronic v. Lohr, 518 U.S. 470 (1996), and have also 

argued several seminal cases involving the commercial speech doctrine, see e.g., Va. State Bd. of 

Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976); Zauderer v. Office of Disciplinary 

Counsel, 471 U.S. 626 (1985); Edenfield v. Fane, 507 U.S. 761 (1993). 

Center for Science in the Public Interest (CSPI) is a national, non-profit advocacy 

organization for nutrition and health, food safety, and sound science. CSPI’s advocacy was 

instrumental in getting Congress to consider nutrition labeling legislation in 1989 and in 

securing passage of the NLEA in 1990, and CSPI has tirelessly advocated for effective FDA 

enforcement of the NLEA in the seventeen years since its enactment. In addition, CSPI led 

the advocacy efforts on behalf of New York City’s restaurant calorie labeling rule last year, 

and is working with other cities and states across the nation on similar measures. 

The American Medical Association, an Illinois non-profit corporation, is the largest 

professional association of physicians and medical students in the United States. The AMA 

was founded in 1847 to promote the science and art of medicine and the betterment of public 

health, and these still remain its core purposes. Its members practice in every state, including 

New York, and in every specialty. 

In June 2007, the AMA, concerned by the alarming incidence of obesity and of 

obesity-related medical conditions, specifically resolved that calorie content, in addition to 

other nutrition information, be displayed on menus and menu boards in fast-food and other 

chain restaurants.1

 

 1 The AMA and Medical Society of the State of New York join this brief both in their 

own persons and as representatives of the Litigation Center of the American Medical 

Association and the State Medical Societies. The Litigation Center was formed in 1995 as a 

coalition of the AMA and private, voluntary, nonprofit state medical societies to represent the 

views of organized medicine in the courts.

Case 1:07-cv-05710-RJH Document 26 Filed 07/16/2007 Page 3 of 8
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The American College of Preventive Medicine, established in 1954, is the national 

professional society for physicians committed to disease prevention and health promotion. 

To address the lack of nutrition labeling and the rising obesity rates in adults and children, 

ACPM introduced the menu-labeling resolution that was passed by the AMA’s House of 

Delegates last month. 

The American Diabetes Association is a nationwide non-profit organization 

founded in 1940 to advance the interests of the now nearly 21 million Americans with 

diabetes. ADA’s mission is to prevent and cure diabetes and to improve the lives of all people 

affected by diabetes. It is the nation’s leading voluntary health organization supporting 

diabetes research, information and advocacy. ADA believes that providing calorie 

information available through postings on menu boards is a critical step in helping people get 

the information they need to understand how foods they eat impact their weight and overall 

nutrition goals. 

The American Public Health Association is the oldest, largest and most diverse 

organization of public health professionals in the world and has been working to improve 

public health since 1872. The Association aims to protect all Americans and their 

communities from preventable, serious health threats. APHA believes that requiring nutrition 

labeling at fast-food and other chain restaurants is particularly important given how many of 

our calories are consumed at restaurants, the large portion sizes and high calorie contents 

often served at restaurants, and the lack of nutrition information at restaurants. 

California Center for Public Health Advocacy is a non-profit organization 

established in 1999 by California’s two public health associations to raise awareness about 

critical public health issues and is currently the lead supporter of a bill before the California 

State Legislature to require nutrition labeling on menus and menu boards in chain restaurants. 

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The Medical Society of the State of New York, an organization of approximately 

30,000 licensed physicians, medical residents, and medical students in New York State, is 

committed to representing the medical profession as a whole and advocating on its behalf 

concerning health-related rights, responsibilities, and issues. 

Trust for America’s Health is a non-profit, non-partisan organization dedicated to 

saving lives by protecting the health of every community and working to make disease 

prevention a national priority. 

George L. Blackburn holds the S. Daniel Abraham Chair in Nutrition Medicine at 

Harvard Medical School, where his researches focuses on obesity and clinical nutrition. He is 

also the Chief of the Nutrition Laboratory and Director of the Center for the Study of 

Nutrition Medicine at the Beth Israel Deaconess Medical Center, Boston. 

Richard J. Deckelbaum is the Robert R. Williams Professor of Nutrition, Chairman 

of the Institute of Human Nutrition, and Professor of Pediatrics and Epidemiology at 

Columbia University’s Mailman School of Public Health and College of Physicians and 

Surgeons, where his research focuses on translating basic nutritional questions into lipid and 

cellular biology. 

Penny M. Kris-Etherton is Distinguished Professor of Nutrition at Pennsylvania 

State University, where her research focuses on effects of diet on metabolism and platelet 

function. 

Francine R. Kaufman is Director of the Comprehensive Childhood Diabetes Center 

at Children’s Hospital Los Angeles and Professor of Pediatrics at the University of Southern 

California School of Medicine. She is an expert on childhood diabetes-obesity epidemic and 

the author of Diabesity (2005). 

Case 1:07-cv-05710-RJH Document 26 Filed 07/16/2007 Page 5 of 8
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Alice H. Lichtenstein is the Stanley N. Gershoff Professor of Nutrition Science and 

Policy and Professor of Public Health and Family Medicine at Tufts University, as well as 

Senior Scientist and Director of the Cardiovascular Nutrition Laboratory at the Jean Mayer 

USDA Human Nutrition Research Center on Aging. Her research examines the effect of diet 

on disease risk factors. 

Marion Nestle is the Paulette Goddard Professor of Nutrition, Food Studies, and 

Public Health at New York University, where her research focuses on the role of food 

marketing as a determinant of dietary choice. Her books include Food Politics: How the Food 

Industry Influences Nutrition and Health (2002, revised 2007); and What to Eat (2006). 

Barry M. Popkin is the Carla Steel Chamblee Distinguished Professor of Global 

Nutrition at the University of North Carolina, Chapel Hill, where he directs the 

Interdisciplinary Center for Obesity and the Division of Nutrition Epidemiology and studies 

dynamic changes in diet, physical activity, and body composition, with a focus on rapid 

changes in obesity. 

Walter Willett is the Fredrick John Stare Professor of Epidemiology and Nutrition at 

the Harvard School of Public Health, Professor of Medicine at Harvard Medical School, and 

the author of Eat, Drink, and Be Healthy: The Harvard Medical School Guide to Healthy Eating. He 

is also one of the principal investigators on the Nurses Health Study, one of the largest, longterm studies to look at the effect of diet on health. 

* * * 

This request is timely filed within seven days of defendants’ brief pursuant to Fed. R. 

App. P. 29(e) and all parties have consented pursuant to Fed. R. App. 29(a). Mark 

Muschenheim, counsel for defendants, and Nancy Milburn, counsel for plaintiffs, have both 

indicated that they consent to this request. 

Case 1:07-cv-05710-RJH Document 26 Filed 07/16/2007 Page 6 of 8
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CONCLUSION 

The motion of U.S. Representative Henry Waxman, David A. Kessler, Public Citizen, 

Center for Science in the Public Interest, American College of Preventive Medicine, American 

Diabetes Association, American Medical Association, American Public Health Association, 

California Center for Public Health Advocacy, The Medical Society of the State of New York, 

Trust for America’s Health, and Professors of Medicine, Nutrition, and Public Health for 

leave to file a brief as amici curiae should be granted. 

 Respectfully submitted, 

 

 /s/ Deepak Gupta

DEEPAK GUPTA

BRIAN WOLFMAN

ADINA H. ROSENBAUM

PUBLIC CITIZEN 

LITIGATION GROUP 

1600 20th Street, NW 

Washington, DC 20009 

(202) 588-1000

 

 /s/ Stephen Gardner

STEPHEN GARDNER (SG-3964) 

CENTER FOR SCIENCE 

IN THE PUBLIC INTEREST 

5646 Milton Street, Suite 211 

Dallas, TX 75206 

(214) 827-2774 

/s/ Kevin C. Mallon

KEVIN C. MALLON (KCM-4798) 

FISHMAN & NEIL, LLP 

305 Broadway, Suite 900 

New York, NY 10007 

(212) 897-5840 

July 16, 2007 Counsel for Amici Curiae

Case 1:07-cv-05710-RJH Document 26 Filed 07/16/2007 Page 7 of 8
IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF NEW YORK 

NEW YORK STATE RESTAURANT 

ASSOCIATION, 

Plaintiff, 

v. Case No. 1:07-cv-05710 (RJH) 

NEW YORK CITY BOARD OF HEALTH, 

NEW YORK CITY DEPARTMENT OF HEALTH 

AND MENTAL HYGIENE, and THOMAS R. 

FRIEDEN, in his official capacity as Commissioner 

of the New York City Department of Health 

and Mental Hygiene, 

Defendants. 

_________________________________________________________________________ 

[PROPOSED] ORDER 

The motion of U.S. Representative Henry Waxman, David A. Kessler, Public Citizen, 

Center for Science in the Public Interest, American College of Preventive Medicine, American 

Diabetes Association, American Medical Association, American Public Health Association, 

California Center for Public Health Advocacy, The Medical Society of the State of New York, 

Trust for America’s Health, and Professors of Medicine, Nutrition, and Public Health for 

leave to file a brief as amici curiae is HEREBY GRANTED. 

SO ORDERED. 

Dated: June _____, 2007 

_______________________________ 

Richard J. Holwell, 

United States District Judge 

 

Case 1:07-cv-05710-RJH Document 26 Filed 07/16/2007 Page 8 of 8