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 : DEBRA DEMUTH 

of the New York State Department of Health 

and Mental Hygiene, 

Defendants. 

DEBRA DEMUTH hereby declares under penalty ofperjury: 

i. I am the Global Director of Nutrition ofMcDonald's Corporation. After I earned a 

doctorate in nutrition from Florida State University, I served on the faculty of Emery University 

School of Medicine and, since leaving academia, have worked as a nutritionist for a number of 

companies in the food and beverage industry. 

2. McDonald's is the largest restaurant company in the world. It feeds more than 50 

million people a day in more than 130 countries. We provide convenient, wholesome, safe, and 

affordable food to millions of people each day. We have taken our responsibility to provide 

nutrition information to our customers seriously - and have taken a comprehensive approach in 

providing this information. 

3. For reasons stated below, we believe that New York City's new Regulation 81.50 

compromises the meaningfulness and relevance of nutrition information to our consumers by 

Case 1:07-cv-05710-RJH Document 5 Filed 06/18/2007 Page 1 of 9
just on calories. For the benefit of the long-term health objectives of consumers, it's 

more than just calories, it's also the nutrients that count. In addition, a comprehensive approach 

to a healthy lifestyle is needed - and not just a healthy diet. Further, implementing an 

environmental nutrition intervention at point of purchase (Regulation 81.50) that has not been 

carefully evaluated through research poses risks to the consumer and does not reflect sound 

public health practices. 

McDonald's Comprehensive Approach to Nutrition and Health Issues 

4. McDonald's has taken a comprehensive approach to nutrition and health issues 

based on three simple concepts--choice, information, and balance. We have termed this 

approach "Balanced, Active Lifestyles." We have increased the variety of our menu choices; 

provided nutrition composition of our foods in 5 different ways to the consumer; and have taken 

a leadership role in promoting physical activity through a variety ofprograms. Information 

about McDonald's "Balanced, Active Lifestyles" can be found on McDonald's website (Ex. A 

hereto) as well in documents published in recent years, such as McDonald's Initiative to Support 

Balanced, Active Lifestyle (Ex. B hereto) and McDonald's 2006 Worldwide Corporate 

Responsibility Report (Ex. C hereto). 

5. McDonald's developed the Balanced, Active Lifestyles framework under the 

guidance of McDonald's Global Advisory Council on Balanced Active Lifestyles, a council of 

thirteen independent nutrition, health and fitness experts, and the European Nutrition Task Force, 

a group of independent nutrition professionals focusing on Europe. 

6. The first component of the Balanced, Active Lifestyle framework is menu choice. 

McDonald's seeks to accommodate customers' varied energy and nutrition needs by expanding 

our menu offerings to include entr6e-sized salads with low-fat dressings and portion control 

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providing a range of serving sizes at point of purchase. McDonald's provides other 

menu options such as grilled chicken sandwiches, fruit and yogurt desserts, soups and fresh fruit 

side options. For children, parents have choices of sandwiches, side dishes, and beverages, 

including low-fat milk and 100% fruit juice. In addition to our menu choices, McDonald's offers 

customers the opportunity to customize their selections through the inclusion or deletion of menu 

item components such as mayonnaise, margarine, low-fat dressings and sauces. 

7. The second component of the Balanced, Active Lifestyle framework is information: 

specifically, the nutritional composition (including 14 nutrients) of our foods. McDonald's has 

provided the nutritional composition of our menu items to consumers for thirty years. As 

described below, we provide nutrition information to our customers through many vehicles in 

multiple access points, and we are proud of the innovations we have made and the accuracy and 

transparency of our communications. 

8. The third component of the Balanced, Active Lifestyle framework is balance: 

balancing energy intake with energy expenditure through increasing physical activity. Physical 

activity is a critical component in maintaining appropriate energy balance and having a healthy 

lifestyle. McDonald's recognizes this need and sponsors many programs to motivate customers 

to be more physically active. In 2004, for example, McDonald's expanded the "Step With It!" 

program to encourage middle-school children and their families to incorporate physical fitness 

into their lives by increasing their daily walking. McDonald's promoted an adult version of the 

Happy Meal, "Go Active! Happy Meal," which contained a Stepometer to log the number of 

steps taken and Step with It! booklet developed by a well-known exercise physiologist, Bob 

Green. McDonald's supports several initiatives to encourage children to be physically active, 

such as the "Get Moving with Ronald McDonald," a show seen by over 1 million children in the 

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since 2003. McDonald's funds local and world-wide community sports programs, 

including the Olympic Games. 

McDonald's Approach to Providing Nutritional Information 

9. McDonald's provides nutrition information to consumers in a variety of ways. First, 

McDonald's makes nutrition information available to consumers in the restaurant through its 

nutrition facts brochure. The brochure provides a comprehensive list of the nutritional 

composition (including 14 nutrients) of our standard menu items. It discloses, for each menu 

item: serving size, calories, calories from fat, total fat, saturated fat, trans fat, sodium, 

carbohydrates, dietary fiber, sugars, protein. It also discloses the percentage of recommended 

daily values for a 2000 calorie diet of total fat, saturated fat, cholesterol, sodium, carbohydrates, 

dietary fiber, and vitamins A and C, calcium, and iron. A copy of the current brochure is 

attached as Exhibit D. Inclusion ofa comprehensive list ofnutrients in addition to calories 

including total fat, saturated fat, trans fat, and sodium better enables customers to make their 

selections based on long-term health objectives, such as cardiovascular health, as opposed to just 

calories. 

10. Second, McDonald's offers a comprehensive and interactive nutrition section on its 

website. The website publishes our nutrition facts brochure and lists the ingredients of each 

component of a menu item. It publishes the food exchange values of each menu item, as defined 

by the American Diabetes Association, for customers who have diabetes or who use the food 

exchange system for weight control. For customers with food allergies, the website lists food 

allergens in each menu item. The website is interactive. A customer can customize any menu 

item, with the website calculating the calories, fat, saturated fat, cholesterol, sodium, 

carbohydrates, dietary fiber, and protein in the customized menu item. A customer can build a 

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with the website calculating this information (including percentages of daily values as 

noted above) for the entire meal. The website also includes information on physical activity and 

balanced diet choices, and a frequently asked questions section that provides details on our 

philosophy and recommendations for maintaining a balanced active lifestyle. 

11. Third, McDonald's provides trayliners featuring nutrition information for its menu 

items, as well as quick tips for using that information in order to achieve a balanced, active 

lifestyle. Like the brochures, the trayliners provide comprehensive information about the 

nutritional composition of our menu items. 

12. Fourth, nutrition information is available to customers through a toll-free telephone 

number. Customer service representatives are trained to answer customers' questions and to 

provide nutrition information about our menu items. Like the written materials, the customer 

service representatives can provide a customer with any or all of the information about the 

nutritional contents of the menu items. 

13. Fifth, McDonald's prints nutrition information directly on much of our food 

packaging. McDonald's was the first major restaurant company to offer information in this 

format. McDonald's presents the food's nutrition content for five elements: calories, protein, 

fat, carbohydrates and sodium on the wrapper or package in the FDA formatted Nutrition Facts 

Panel as well as in a graphic icon. To provide consumers with the ability to anchor the 

information to their daily needs, each element's nutrition value is presented numerically and 

graphically as a percentage of the recommended daily value for a 2000 calorie diet in an iconbased format, easily understood independent of language. 

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with Regulation 81.50. 

14. We strongly disagree with New York City's proposed requirement that McDonald's 

isolate and post caloric information alone next to menu items on our menu board. The proposal 

undercuts McDonald's comprehensive approach to educating consumers about health and 

nutrition. We believe that our approach is based on the public health community's consensus for 

communicating nutrition and health information to consumers to enable them to make the right 

choices for their long-term health objectives and we believe that the City's approach is unsound. 

Consumers need more guidance than just "calories." Simply put, we strongly disagree with the 

message that the City of New York demands that we convey, for the following reasons. 

15. First, by requiring McDonald's to overemphasize the importance of calories, the 

City's regulation will undermine McDonald's carefully developed approach to communicating 

with our customers about nutrition and health. We believe that caloric information is only one 

part of health and good nutrition and that consumers should focus on more complete nutrition 

information. In forcing McDonald's to disassociate caloric information from more 

comprehensive health and nutrition information, the City undermines McDonald's ability to 

explain the presence or absence of a variety of other important nutrients and factors that are 

equally important in promoting consumer health and wellness. For example, the highly 

regulated definition of a "healthy" meal by the FDA focuses on restricting fat, cholesterol, and 

sodium in addition to requiring the presence of 3 of 6 nutrients (protein, fiber, vitamins A and C, 

iron and calcium). Similarly, the 2005 Dietary Guidelines, published jointly by the U.S. 

Department of Health and Human Services and the Department of Agriculture, emphasize the 

importance of including nutrient dense foods and moderating saturated fat, trans fat, cholesterol 

and sodium. 

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For nutrition information to motivate and be meaningful to consumers, it must be 

provided within the broader context of helping consumers achieve a healthy diet and lifestyle. 

The 2005 Dietary Guidelines identify nine core areas that relate to diet and health, and caloric 

intake is only one part of one such area. The nine areas are: adequate nutrients within caloric 

needs, weight management, physical activity, food groups to encourage, fats, carbohydrates, 

sodium and potassium, alcoholic beverages, and food safety. Thus, the 2005 Dietary Guidelines 

do not overfocus on or myopically isolate calories. Rather, they recommend that individuals 

consume a variety of nutrient-dense foods and beverages within and among the basic food 

groups; that they balance calories from foods and beverages with calories expended; that they 

engage in regular physical activity and reduce sedentary activities; that they consume a variety of 

fruits, vegetables, whole-grains, and milk products each day; and that they limit intake of fats 

and oils high in saturated or trans fatty acids. By highlighting the calories of the food product 

alone and in isolation, Regulation 81.50 will require McDonald's to contradict its carefully 

developed approach to nutrition and health, which includes menu choice, nutritional information 

in context, and physical activity. 

17. Second, we believe that the information will be meaningless to most consumers, 

who need an "anchor" to understand nutrition information. Most consumers do not know the 

recommended daily allowances for various nutrients, or their recommended daily caloric intake. 

McDonald's helps consumers put nutritional information in context with an "anchor," in the 

form of a graphical icon-based bar-graph on its food wrappers. The graph shows consumers not 

only the nominal amount of various nutrients (calories, protein, fats, carbohydrates and sodium), 

but the amount of the recommended Daily Value for a 2000 calorie diet. Without seeing 

nutritional information in context, unadorned caloric value is a confusing and meaningless 

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to many consumers, and could lead individual consumers to make the wrong choices for 

their long-term health goals. Regulation 81.50, however, demands that restaurants give caloric 

information out of context, without such an anchor. 

18. Third, we believe that the regulation's focus on calories alone is the wrong approach 

to addressing increasing rates of obesity. We are of the view that no single factor is responsible 

for the increasing rates of obesity. Rather, we believe that the causes are complex and fueled by 

many factors, including genetics, cultural issues, economic factors, excess food consumption and 

today's increasingly sedentary lifestyles. We believe that the key to maintaining a healthy weight 

is striking the right balance between calorie intake and physical activity. By focusing on calories 

alone, we think that the City is looking for an ineffectual '%nagic bullet" that may mislead 

consumers. 

19. Fourth, we do not believe that the City's focus on calories on the menu board is 

scientifically sound in that it is not based on findings from scientific research. In my opinion, the 

scientific basis for evaluating the effect of communicating nutrition information at the point of 

purchase is at a very early stage. That opinion is shared by others. The Keystone Forum's final 

report (May 2006), concluded that there is no public health consensus on how consumers use 

nutrition information, and that: 

There is a clear need for more research regarding how the 

provision of nutrition information, claims (such as "low calorie"), 

and symbols influence consumer preference and choice for awayfrom-home food consumption situations. Of particular concern is 

how, when, and why consumers use nutrition information and 

claims during their decision-making processes. More specifically, 

a better understanding is needed of the types of factors that 

moderate consumers' responses to the provision of nutrition 

information and claims for away-from-home foods. 

The chapter concludes with a list of suggested research questions for addressing these topics. 

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Similarly, in a recent review published in Preventative Medicine, researchers 

evaluated all research articles they could find that influenced the environment through food 

availability, access, pricing or information at the point-of-purchase in various settings. Due to 

the small number of interventions that were of suitable quality and design to include in the 

review, the authors concluded: "Research is needed using consistent methods, better assessment 

tools, and longer durations; targeting diverse populations; and examining sustainability." 

Seymour, et al., "Impact ofNutrition Environmental Interventions On Point-Of-Purchase 

Behavior In Adults: A Review," 39 Preventive Medicine S108 (2004). 

21. In sum, we strongly disagree with the New York City proposal. We think it 

overemphasizes the importance of calories and undermines the program we have developed in 

addition to the public health initiatives based on the Dietary Guidelines provided by the USDA. 

We think it will provide information in a way that will be meaningless and possibly misleading 

for many of our customers. We think it will not be effective in addressing the causes of obesity 

and the resultant public health concerns. We think scientific consensus should lead public policy 

and regulations. And the scientific basis for this regulation is unsubstantiated. 

22. I declare under penalty of perjury that the foregoing is true and correct. 

Executed on JuneLf, 2007 

~a~b~E~L~ Debra 

OFFICIAL SEAL 

CA'I~HERYNE J MCCAU 

NOTARY PUBLIC -stAfE ~ IUINOIS 

MY COMMlsSKXN EXPIRES:12131X18 

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