STATES DISTRICT COURT 

SOUTHERN DISTRICT OP NEW YORK 

NEW YORK STATE RESTAURANT 

ASSOCIATION, 

Plaintiff, : 

- against - No. 2007 Civ. 

NEW YORK CITY BOARD OF HEALTH, 

NEW YORK CITY DEPARTMENT OF HEALTH 

AND MENTAL HYGIENE, and Thomas R. Frieden, DECLARATION OP 

In His Official Capacity as Commissioner : HECTOR A. MU~OZ 

of the New York State Department of Health 

and Mental Hygiene, 

Defendants. 

HECTOR A MUr~OZ hereby declares under penalty of perjury as follows: 

1. I have been an employee of Burger King Corporation ("BKC") for more than 

eight years. BKC is a member of the New York State Restaurant Association. For the last two 

years, I have held the position of Senior Director of Marketing Impact, National Restaurant 

Merchandising for BKC. I manage all aspects of BKC's merchandising efforts, including its 

promotion of food products through store window signs, outdoor signs, restaurant menu boards 

and food packaging. Previously, I worked for six years at the field market capacity, in various 

roles across the country. 

2. One of my primary responsibilities as head of marketing and merchandising is to 

understand how most effectively to communicate BKC's message to our customers at the 

restaurant level, and how changes in our methods of communicating information to customers -- 

whether it be about promotions, product choices or nutritional information -- can affect 

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buying decisions. BKC communicates to customers in a number ofways, including 

through the media, signage, both inside and outside the store, and menu boards. 

3. The menu board is the single most valued piece of real estate in a Burger KingB 

restaurant. It is the most important way we communicate with our customers in the store about 

the products we offer and their price; it is what our customers look at, and it is what stimulates 

their decision to buy. To be effective, our menu board must (1) list our main menu items; (2) be 

easily read, (3) be easily understood, and (4) be quickly and easily ordered from. BKC has 

expended substantial resources to design and develop our menu boards so that they achieve these 

four objectives. That effort is ongoing. We are always trying to improve our menu boards. 

4. Our menu boards consist of three types of food description inserts: 

· Menu slats which are lines of text lettering identifling the menu item and its 

price; 

· Value meal "trans-lites" which are illuminated photographic images that 

feature fries and drinks along with the name of the item and the price; and 

· Promotional trans-lites which are illuminated photographic images of 

promotional food offerings, with their name and price. 

The food description inserts are arranged on large menu board panels. While the breakfast meal 

is being served (until 10:30 a.m.), three menu board panels are displayed: the breakfast value 

meal translites panel on the left, the promotional translites panel in the center (both of which are 

stationary panels), and the menu slat panel on the right (which is a sliding panel). At 10:30 a.m., 

the menu slat panel is shifted to the left to cover the breakfast value meal translites panel and to 

reveal the value meal translites panel, which has lunch and dinner offerings. Because space on 

menu boards is limited and so important to BKC, we carefully control its use and appearance. 

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keep clutter on menu boards at a minimum, BKC displays only the menu board panels listing 

the offerings that are being served during that part of the day. The drive-throughs apply the same 

method of displaying menu board panels, except that the menu slats panel rotates instead of 

slides to cover items not being offered. 

5. Requiring BKC to place the calorie count for each menu item on the menu boards 

will create clutter and cause customer confusion. Addition of the calorie count information will 

increase significantly the amount of text on the menu board. In order to fit the calorie and price 

information, we will have to shrink the font size of the name and price of the food item, which 

will make the menu board more difficult for customers to read while they are standing in line or 

at the drive through. We have found that customers tend to finalize their food purchasing 

decisions before they reach the counter. Many customers will have difficulty reading the 

redesigned menu boards from their place in line. This will cause frustration. The smaller font 

size will also cause confusion as customers try to differentiate calorie and price numbers which 

will necessarily be squeezed together given the limited space on the slats and translites. 

6. Based on my years of marketing and merchandising experience and my review of 

consumer research studies, I am aware that the more information that is crowded onto a menu 

board, the greater the degree of customer stress, which can affect buying decisions negatively. 

Customers want clearly organized, easy-to-read menu boards. With more clutter, a menu board 

becomes a "stressor" for customers in the order line, making them less likely to review the menu 

board when making a purchasing decision. Customers in quick service restaurants tend not to 

buy items they cannot see. Instead, customers will order food products that they are already 

familiar with, frustrating BKC's efforts to introduce new food products and creating a negative 

dining experience. 

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An effective, easy-to-read menu board is essential to enable BKC to satisfy 

customers' quick-serve needs. From an operations perspective, we strive to avoid lengthy food 

ordering lines. Customers expect to spend only one to three minutes waiting in line to order. 

Failing to meet this goal can create customer dissatisfaction. At BKC, to minimize waiting time, 

our objective is to complete customer orders within 150 seconds. A well-organized, easily read 

menu board reduces the ordering line length by helping customers quickly select their meal 

choice and convey that choice to the cashier. 

8. Focusing customer attention on caloric information on the menu board will lead to 

slower customer ordering and longer food ordering lines. Assuming customers will even 

consider caloric information at the point of purchase, accounting for caloric information while in 

the food-order line will delay decision-making. If customers pose questions to our restaurant 

employees about the calorie information - because they are unsure of the recommended daily 

caloric intake, confuse calories with another nutrient or confuse calories with item price - the 

buying decision will be delayed further. 

9. This delay is of particular concern for our menu items that can be made to order for 

customers. BKC invites its customers to place specialized orders for many of our menu items, 

adding or subtracting ingredients from those menu items to create a "customized" meal. For 

example, a five ingredient sandwich may be ordered in more than 100 different ways. 

Customers may ask the Burger King~ cashier for assistance to determine how modifying their 

selection will affect the calorie count of the menu item. 

10. During a restaurant's busy lunch service, for example, these delays can accumulate, 

causing significantly longer food ordering lines and a loss of customers who refuse to wait in a 

long line. This puts us at a competitive disadvantage compared to other restaurants in New York 

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which have not chosen to make calorie information available and are thus not subject to the 

Regulation. Everyone in New York City is in a hurry. The cornerstone of our business model is 

offering quick, convenient service and tasty meals. Requiring us to modifl our menu boards in a 

way that significantly reduces their market appeal and causes delays in service will be 

detrimental to our business. 

11. This delay is not necessary. BKC offers customers nutrition information about our 

menu items in a variety ofways. We place an easy-to-read nutrition poster near the food 

ordering area. Customers can consult the nutrition board before entering the order line. We have 

an interactive website that allows customers to plan a meal and tally up the number of calories as 

they go. We also offer brochures containing nutrition and health information in many of our 

restaurants and will soon also provide such information to our customers through tray liners. 

12. The New York regulation allows restaurants to submit alternative proposals to 

menu board labeling to the City's Department of Health. BKC submitted a number of alternative 

proposals, including a menu board sign in stores notifying customers that '1\Jutritional 

Information Is Available On Request." We also offered to disclose nutrition information about 

our products on signs in front of the cash register, on stanchions at the start of the queue line or 

at the counter or on side walls. We proposed providing calorie information on in store counter 

mats, which would be located right at the point ofpurchase. We offered to use one or several of 

these methods of conveying nutrition information in combination. A copy of our proposal to the 

City is attached to this Declaration as Exhibit A. The Department of Health rejected all of 

BKC's in-store proposals, stating inexplicably that they did not meet "the standard" of making 

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information available at the point ofpurchase.' A copy of the Health Department's letter 

to Craig S. Prusher, Vice President, Government Relations, is attached to this Declaration as 

Exhibit B. 

The Department of Health did indicate that it would consider the stanchion design for drive 

through settings as long as it was placed along the drive through line before customers place their 

order. 

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declare under penalty of perjury pursuant to 28 U.S.C. ~ 1746 that the foregoing is true and 

correct. 

Executed on June /3, 2007 

Hector A. 

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