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 : KEVIN BURNETT 

of the New York State Department of Health 

and Mental Hygiene, 

Defendants. 

KEVIN BURNETT hereby declares under penalty of perjury as follows: 

1. I am the Senior Director of Research and Development, Training and Operations 

for Cold Stone Creamery, Inc. ("Cold Stone"). I have been with Cold Stone for three years, 

having started as Director of Operations. Cold Stone is a member of the New York State 

Restaurant Association. 

2. Cold Stone's signature product is its super-premium ice cream. We offer 34 

different flavors of ice cream. Customers can also choose from over 50 different "mix ins" -- 

candy, fruit, nuts and other mix ins -- and from 12 differentoppings. Cold Stone also offers 

reduced fat, low calorie ice creams and a no-sugar-added no fat ice cream, as well as seven 

flavors of sorbet which have no fat. 

3. Cold Stone advocates a balanced and sensible approach to eating treats or 

"occasional indulgences" like ice cream. Therefore, Cold Stone began publishing 

comprehensive nutrition information for its menu items on its website three years ago. Cold 

Case 1:07-cv-05710-RJH Document 10 Filed 06/18/2007 Page 1 of 4
provided its customers with a complete list of nutrients for each menu item, including 

calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, carbohydrate, 

dietary fiber, sugar, sugar alcohols, protein, vitamins, calcium and iron, as well as the 

recommended percentage daily value for each nutrient so that consumers would understand how 

a particular menu item would fit into their overall mealplan. Cold Stone provided this 

information for its ice creams and sorbets, as well as for each of its mix ins, toppings and cones 

in every available serving size. A copy of the nutrition information pages formerly posted on 

Cold Stone's website is attached as Exhibit A. 

4. Cold Stone no longer posts nutrition information on its website. The New York 

City Department of Health's passage of Regulation 81.50 requires those restaurants that make 

nutrition information available to customers to post product calories on their menu boards using 

the same type and font as the product name and price. Because it did not believe it could comply 

with the posting requirement on menu boards, Cold Stone determined that it could no longer 

make nutrition information about its products available to the public. 

5. Complying with the New York City regulation would have imposed a great 

hardship on Cold Stone because each of its products is uniquely made to order. Customers may 

choose one or more flavors of ice cream or sorbet and then add in as many mix ins and toppings 

as they want. The list of nutrition information posted on our website before it was withdrawn 

was three and a half pages single spaced with smalltype. Given the number of product 

combinations, it would be impossible for Cold Stone to post calorie information for each of its 

menu items on the menu board because there would not be enough room to do so. 

6. As an alternative, the New Ydrk City regulation would allow Cold Stone to post a 

"range" of calories for its products. However, customers can create literally thousands of 

-2- 

Case 1:07-cv-05710-RJH Document 10 Filed 06/18/2007 Page 2 of 4
combinations of our menu items. The range for each menu item would be absurdly 

large (e.g., 220-1040 calories) and would be meaningless to consumers. The posted information 

would also be confusing because customers would have no way of knowing where in the "range" 

of calories their particular menu selection fell. 

7. Complying with New York City's regulation would also have placed Cold Stone at 

a competitive disadvantage as compared to other stores that sell a similar product. Some of our 

customers who visit our stores to buy our product would change their minds and leave when they 

saw the calorie "range" of the menu item they wanted to buy. It is very likely that many of those 

customers would go to a competitor who was not required to post the calorie count of its ice 

cream products. Its products may in fact have more calories than ours, particularly given that we 

offer menu items that are non fat, no sugar added and lower in calories than are regular ice 

creams. Or, our competitor's products may have the same number of calories as ours. In either 

case, the regulation would have forced Cold Stone to compete on an unlevel playing field based 

solely on the fact that it chose to disclose the calorie information to customers. 

-3- 

Case 1:07-cv-05710-RJH Document 10 Filed 06/18/2007 Page 3 of 4
declare under penalty of perjury pursuant to 28 U.S.C. g 1746 that the foregoing is true 

and correct. 

Executed on June 15 2007 

KEVIN BURNETT 

-4- 

Case 1:07-cv-05710-RJH Document 10 Filed 06/18/2007 Page 4 of 4