STATES DISTRICT COURT 

SOUTHERN DISTRICT OF 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 OF 

In His Official Capacity as Commissioner : STEPIIEN HORN 

of the New York State Department of Health 

and Mental Hygiene, 

Defendants. 

STEPHEN HORN hereby declares under penalty of perjury as follows: 

1. I am the Chief Legal Officer and General Counsel of Dunkin' Brands, Inc. 

("Dunkkn' Brands"), which is the indirect parent and servicer of the Dunkin' Donuts and BaskinRobbins franchise systems. Dunkin' Brands is a member of the New York State Restaurant 

Association. 

2. New York City Department of Health Regulation 81.50 provides that the Board of 

Health will consider alternatives to posting calorie count information on menu boards, and any 

acceptable alternative must be expressly approved by the Department ofHealth. On February 

27, 2007, I attended a meeting with Department of Health officials and representatives of the 

National Restaurant Association to possible discuss alternatives that would be acceptable. Two 

alternatives for calorie display that were discussed were counter mats and signs on stanchions 

that would be placed adjacent to the point of purchase where they would be readily visible to 

customers standing in line to place their orders. 

Case 1:07-cv-05710-RJH Document 14 Filed 06/18/2007 Page 1 of 2
The Board of Health representatives stated that while they did not feel they could 

approve proposals based on counter mats, they felt positively about signs on stanchions as an 

alternative. Based on the Department's reaction, Dunkin' Brands was encouraged to believe that 

it could create an acceptable alternative, and with that understanding, subjected itself to the 

forthcoming regulation by continuing to publish nutrition information on brand websites on an 

after the March 1, 2007, "triggering date" set by the regulation. 

4. On March 14, 2007, I met with Department of Health representatives to gain 

approval ofDunkin' Brands proposed sign-on-stanchion solution and was informed that the 

Department had changed its view and that signs on stanchions would not be acceptable because 

they were not "prominent" enough within the meaning of Regulation 81.50 (b)(l). I expressed 

my disappointment by email to Mr. Thomas Merrill, an attorney for the Department. In a 

responsive email, Mr. Merrill advised of a Board of Health position that, to my knowledge, had 

never been previously published or announced: that ifa restaurant otherwise subject to the 

regulation chose not to display the name of a food item and its price on a menu board or a printed 

menu (for example, if the item and its price were displayed in a merchandising display case), the 

item's caloric content would not have to be disclosed at all. In essence, whether a restaurant 

must bear the burden and cost of the regulation is dependent entirely on its chosen 

merchandising system. 

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

correct. 

Executed on June (~, 2007 

HORN 

-2- 

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