Case 1:07-cv-05710-RJH Document 24-2 Filed 07/09/2007 Page 1 of 24
TABLE OF CONTENTS 

TABLE OF AUTHORITIES ........................................................................................... ii 

I. STATEMENT OF INTEREST OF AMICI CURIAE .................................................1 

II. BACKGROUND ........................................................................................................2 

III. ARGUMENT..............................................................................................................5 

A. Commercial Disclosure Requirements Are Routine.................................5 

B. The First Amendment Standard for Commercial Disclosure 

Requirements is the Reasonable Relationship Test ..................................7 

C. New York City Health Code §81.50 Meets the Reasonable 

Relationship Test ....................................................................................10 

D. The Case of United Foods is Inapplicable to New York City Health 

Code §81.50 ............................................................................................13 

E. The Chilling Doctrine is Not at Issue.. ...................................................17 

IV. CONCLUSION.........................................................................................................19 

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TABLE OF AUTHORITIES 

Cases 

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 

447 U.S. 557 (1980)..................................................................................................7 

44 Liquormart, Inc. v. Rhode Island, 

517 U.S. 484 (1996)...........................................................................................9 

Lorillard Tobacco Co. v. Reilly, 

533 U.S. 524 (2001)..........................................................................................18

National Electrical Manufacturers Association v. Sorrell et al., 

272 F.3d 104 (2d Cir. 2001)............................................................6, 7, 8, 9, 10, 15, 16 

Pharmaceutical Care Management Association v. Rowe, 

429 F.3d 294 (1st Cir. 2005)................................................................................15 

Riley et al. v. National Federation of the Blind of North Carolina, Inc. et al., 

487 U.S. 781 (1988).....................................................................................17, 18 

United States Department of Agriculture v. United Foods, 

533 U.S. 405 (2001)..............................................................................8, 14, 15, 16 

Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 

425 U.S. 748 (1976)....................................................................................7, 8, 18 

Wells Fargo Bank Northwest, N.A. v. TACA Intern. Airlines, S.A., 

314 F. Supp. 2d 195 (S.D.N.Y. 2003)......................................................................8 

Wooley v. Maynard, 

430 U.S. 705 (1977).....................................................................................16-17 

Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 

471 U.S. 626 (1985)......................................................7, 8, 9, 10, 11, 14, 15, 16, 17, 19 

Statutes and Regulations 

2 U.S.C. § 434..................................................................................................6 

15 U.S.C. § 68, et seq..........................................................................................5 

15 U.S.C. § 70, et seq..........................................................................................5 

15 U.S.C. § 78l ................................................................................................6 

15 U.S.C. § 1333 ..............................................................................................6 

21 U.S.C. § 205(e)(2)..........................................................................................5 

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21 U.S.C. § 343, et seq......................................................................................5, 6 

33 U.S.C. § 1318...............................................................................................6 

42 U.S.C. § 11023.............................................................................................6 

21 C.F.R. § 202.1..............................................................................................6 

29 C.F.R. § 1910.1200........................................................................................6 

Cal. Health & Safety Code § 25249.6 "Proposition 65"..................................................6 

N.Y. Agric. & Mkts. Law 214-h.............................................................................5 

N.Y. Envtl. Conserv. Law § 33-0707.......................................................................6 

Miscellaneous 

AMA House of Delegates, Nutrition Labeling and Nutritionally Improved Menu Offerings in 

Fast-Food and Other Chain Restaurants, Resolution: 419 (A-07)...........................11, 12, 13

Backstrand J, Wootan MG, Young LR, Hurley J. Fat Chance, Washington, DC: Center for 

Science in the Public Interest, 1997.....................................................................4, 11 

Burton S, Creyer EH, Kees J, Huggins K. Attacking the obesity epidemic: the potential health 

benefits of providing nutrition information in restaurants. American Journal of Public Health. 

2006; 96:1669-1675....................................................................................3, 4, 11 

Food and Drug Administration. Counting Calories, Report of the Working Group on Obesity, 

FDA, Center for Food Safety and Applied Nutrition (2004).......................................12, 13

Levy AS. Derby BM. The Impact of NLEA on Consumers: Recent Findings from FDA’s Food 

Label and Nutrition Tracking System. Washington DC: Center for Food Safety and Applied 

Nutrition. Food and Drug Administration. 1996......................................................3, 11 

Institute of Medicine. Preventing childhood obesity health in the balance, National Academies 

Press, Washington DC (2005)..........................................................................13, 14 

Post, Robert. The Constitutional Status of Commercial Speech, 48 U.C.L.A. L. Rev. 1 

(2000).......................................................................................................9, 18 

Post, Robert. Transparent and Efficient Markets: Compelled Commercial Speech and Coerced 

Commercial Association in United Foods, Zauderer, and Abood, 40 Val. U. L. Rev. 555 

(2006)............................................................................................................6 

Surgeon General. Call to Action to Prevent and Decrease Overweight and Obesity. U.S. 

Department of Health and Human Services, Public Health Service, Office of the Surgeon 

General, Rockville MD (2001).............................................................................12 

US Department of Health and Human Services, Centers for Disease Control and Prevention, 

National Center for Health Statistics. Healthy People 2000 Final Review. 2001.....................3 

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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

________________________________________________ 

 : 

NEW YORK STATE RESTAURANT : 

ASSOCIATION, : 

 : 

 Plaintiff, : 

 : 

 -against- : No. 07 CIV 5710 (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 State Department of Health : 

And Mental Hygiene, : 

 : 

 Defendants. : 

_______________________________________________ : 

BRIEF OF JENNIFER L. POMERANZ OF THE RUDD CENTER 

 FOR FOOD POLICY AND OBESITY AT YALE UNIVERSITY AND 

ROBERT POST OF YALE LAW SCHOOL AND KELLY D. BROWNELL 

OF THE RUDD CENTER FOR FOOD POLICY AND OBESITY AT YALE 

UNIVERSITY AS AMICUS CURIAE IN SUPPORT OF DEFENDANTS

Jennifer L. Pomeranz of the Rudd Center for Food Policy and Obesity at Yale University, 

Robert Post of Yale University Law School, and Kelly D. Brownell of the Rudd Center for Food 

Policy and Obesity at Yale University (“Rudd Center”) submit this brief in support of defendants 

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

Thomas R. Frieden (“New York City”) and against plaintiff’s Motion for Declaratory Relief and 

a Preliminary Injunction. 

I. STATEMENT OF INTEREST

Jennifer L. Pomeranz, J.D., M.P.H. is the Coordinator of Legal Initiatives at the Rudd 

Center and Kelly D. Brownell, Ph.D. is the Director of the Rudd Center. The Rudd Center’s 

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mission is to improve the world’s diet, prevent obesity, and reduce weight stigma by establishing 

connections between sound science and public policy, developing targeted research and 

expressing a dedicated commitment to real change. The Rudd Center strives to improve 

practices and policies related to nutrition and obesity so as to inform and empower the public, to 

promote objective, science-based approaches to policy, and to maximize the impact on public 

health. Robert Post, J.D., Ph.D. is the David Boies Professor of Law at Yale Law School. He 

focuses his teaching and writing on constitutional law and is a specialist in First Amendment 

jurisprudence and constitutional law. New York City’s adoption of Health Code §81.50 “Calorie 

Labeling” directly furthers the Rudd Center’s goals. We write separately on the First 

Amendment issues. 

The obesity epidemic is a public health crisis in the United States. New York City is 

addressing the epidemic by requiring food service establishments to post on menus and menu 

boards the calorie content of food and beverages they offer. Based on the best scientific 

evidence available and the recommendations of public health experts, the Rudd Center supports 

New York City’s regulation as it has supported menu labeling legislations in cities and states 

across the country. The United States Surgeon General, the Institute of Medicine, the United 

States Food and Drug Administration (“FDA”), and the American Medical Association 

(“AMA”) have all advocated for increased nutrition information for food and beverages offered 

for purchase in food service establishments (“restaurants”). 

II. BACKGROUND

In New York City, more than half of adults are overweight (34.9%) or obese (19.9%). 

See Declaration of Thomas R. Frieden, at ¶ 3. In 2005, 71.4% of all deaths in New York City 

were due to diseases highly correlated with obesity: heart disease, diabetes, stroke and cancer. 

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See id., at ¶ 6. In an effort to address these public health issues, New York City adopted 

Amendment §81.50 Calorie Labeling to Article 81 of the New York City Health Code on 

December 5, 2006 (“Health Code §81.50”). Through this regulation, the City mandates that food 

service establishments “post on menu boards and menus the calorie content values” that have 

been made publicly available on or after March 1, 2007, “for each menu item next to the listing 

of each menu item.” See Notice of Adoption of an Amendment (§81.50) to Article 81 of the New 

York City Health Code (December 5, 2006) (“Notice of Adoption”), at 4. 

Health Code §81.50 advances New York City’s interest in reducing obesity by promoting 

informed consumer decision-making and preventing consumer confusion. New York City found 

that the regulation would “allow individuals to make more informed choices that can decrease 

their risk for the negative health effects of overweight and obesity associated with excessive 

calorie intake.” Id. at 1. Sound scientific evidence strongly supports this rationale. Studies 

show that consumers routinely consult food labels1 and that as a result they change their food 

purchasing habits.2 In a recent study consumers presented with calorie content on the menu 

chose high-calorie items one-third less frequently.3

Health Code §81.50 seeks to improve public health by preventing potential consumer 

confusion. There is consensus within the public health community that consumers are unable to 

correctly estimate the calorie content of foods and beverages, particularly at restaurants. Studies 

have found that 9 out of 10 people underestimate the calorie content of less-healthy items by an 

 

1

 US Department of Health and Human Services (US DHHS), Centers for Disease Control and Prevention, National 

Center for Health Statistics. Healthy People 2000 Final Review. 2001. 2

 Levy AS. Derby BM. The Impact of NLEA on Consumers: Recent Findings from FDA’s Food Label and Nutrition 

Tracking System. Washington DC: Center for Food Safety and Applied Nutrition. Food and Drug Administration. 

1996. 

3

 Burton S, Creyer EH, Kees J, Huggins K. Attacking the obesity epidemic: the potential health benefits of providing 

nutrition information in restaurants. Am J Public Health. 2006; 96:1669-1675. 

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average of more than 600 calories (almost 50% less than the actual calorie content).4

 One survey 

performed at the American Dietetic Association’s annual meeting shows that even professional 

nutritionists underestimate the calorie content of restaurant foods by 220 to 680 calories.5 

New York City’s disclosure requirement implements sound public policy reflecting 

information the public health community has known for years. Consumers are entitled to know 

the calorie composition of their foods and beverages, but they cannot guess this nutritional data 

for themselves. Health Code §81.50 provide this information to consumers in a manner that 

public health professionals regard as most effective in promoting informed consumer decisionmaking and preventing consumer confusion. The regulation imposes only a minimal burden on 

restaurants, because it requires disclosure of information already provided by restaurants to the 

public. The regulation merely requires that this information be disclosed in the most effective 

way- at the point of purchase. Similar disclosure requirements are common in federal and state 

regulatory programs designed to promote consumer information and prevent potential consumer 

confusion. In doing so, these requirements establish efficiency and transparency in the 

commercial marketplace. Health Code §81.50 will contribute to the prevention of obesity and its 

related diseases by assisting New York City residents to make choices based on easily accessible 

and readily understandable calorie information. 

Plaintiff argues that Health Code §81.50 compels and burdens speech in violation of the 

First Amendment of the United States Constitution. See Memorandum of Law in Support of 

Plaintiff’s Motion for Declaratory Relief and a Preliminary Injunction (“Plaintiff’s Memo”). If 

plaintiff’s argument is accepted, innumerable federal and state regulations requiring consumer 

 

4

 Burton S, Creyer EH, Kees J, Huggins K. Attacking the obesity epidemic: the potential health benefits of providing 

nutrition information in restaurants. Am J Public Health. 2006; 96:1669-1675. 

5

 Backstrand J, Wootan MG, Young LR, Hurley J. Fat Chance, Washington, DC: Center for Science in the Public 

Interest, 1997. 

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disclosure will be thrown into jeopardy. The government’s ability to address the obesity 

epidemic through regulations promoting informed consumer choice and personal responsibility 

would be derailed. The scientific consensus on this issue has led 6 cities and 14 states to 

introduce legislation similar to New York’s and is the reason the Rudd Center has a strong 

history of supporting menu labeling legislation requiring restaurants to disclose factually 

accurate calorie data on their menu at the point of purchase. 

III. ARGUMENT

A. Commercial Disclosure Requirements Are Routine 

Plaintiff's First Amendment arguments are extreme. Commercial disclosure regulations 

are a routinely applied to transactions in the current marketplace. If promoting the circulation of 

accurate factual commercial information in order to inform consumers and prevent confusion 

were constitutionally questionable, huge swaths of ordinary consumer protection legislation 

would be rendered constitutionally suspect. Purveyors of food items must presently make 

available to consumers a wide range of information, standardized for easy comparison, about 

everything from the ingredients contained in the product, 21 U.S.C. §343(i), to the net weight of 

the contents, 21 U.S.C. §343(e), to the unit-price of the product, N.Y. Agric. & Mkts. Law 214-h 

(McKinney 2007). Beverage containers must state the percentage of alcohol by volume. See 21 

U.S.C. § 205(e)(2). Similarly, laws enforced by the Federal Trade Commission require that most 

textile and wool products have labels listing: fiber content, country of origin, and the identity of 

the manufacturer or another business responsible for marketing or handling the item. See the 

Textile Fiber Products Identification Act, 15 U.S.C. § 70, et seq., and the Wool Products 

Labeling Act of 1939 (Wool Act), 15 U.S.C. § 68, et seq.

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Plaintiff’s argument is so excessive that it would undermine the very FDA disclosure 

requirements (21 U.S.C. §343 et seq.) to which plaintiff otherwise appeals in its argument for 

preemption. 

The Second Circuit has specifically rejected plaintiff’s argument that compelled 

disclosure of accurate commercial information in the marketplace is constitutional questionable: 

Innumerable federal and state regulatory programs require the disclosure of product 

and other commercial information. See, e.g., 2 U.S.C. § 434 (reporting of federal 

election campaign contributions); 15 U.S.C. § 78l (securities disclosures); 15 U.S.C. 

§ 1333 (tobacco labeling); 21 U.S.C. § 343(q)(1) (nutritional labeling); 33 U.S.C. § 

1318 (reporting of pollutant concentrations in discharges to water); 42 U.S.C. § 

11023 (reporting of releases of toxic substances); 21 C.F.R. § 202.1 (disclosures in 

prescription drug advertisements); 29 C.F.R. § 1910.1200 (posting notification of 

workplace hazards); Cal. Health & Safety Code § 25249.6 ("Proposition 65"; warning 

of potential exposure to certain hazardous substances); N.Y. Envtl. Conserv. Law § 

33-0707 (disclosure of pesticide formulas). 

National Electrical Manufacturers Association v. Sorrell et al., 272 F.3d 104, 116 (2d Cir. 

2001); see also, Robert Post, Transparent and Efficient Markets: Compelled Commercial Speech 

and Coerced Commercial Association in United Foods, Zauderer, and Abood, 40 Val. U. L. Rev. 

555, 584-585 (2006) (“commercial speech is routinely and pervasively compelled ... to reduce 

information costs and thereby to establish a more educated and efficient marketplace.”). 

In the context of commercial speech, the goal of the First Amendment is to promote the 

circulation of accurate information, in part so that consumers can make decisions that are better 

informed. See Sorrell, 272 F.3d at 114. Consumer disclosure requirements like Health Code 

§81.50 serve this goal by increasing the accurate factual information available to consumers. To 

strike down Health Code §81.50 would render constitutionally suspect the entire system of 

consumer protection in the United States. 

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B. The First Amendment Standard for Commercial Disclosure Requirements is the 

Reasonable Relationship Test 

Plaintiff’s extreme argument misunderstands the basic constitutional law of commercial 

speech, and it is especially misleading with regard to the First Amendment standards applicable 

to commercial disclosure requirements. The First Amendment guarantees protection to both 

commercial and noncommercial speech. See Virginia Pharmacy Board v. Virginia Citizens 

Consumer Council, 425 U.S. 748 (1976). However, the Constitution “accords a lesser protection 

to commercial speech than to other constitutionally guaranteed expression.” Central Hudson 

Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 563 (1980); see 

also, National Electrical Manufacturers Association v. Sorrell et al., 272 F.3d 104, 113 (2d Cir. 

2001) (“Commercial speech is subject to ‘less stringent constitutional requirements’ than other 

forms of speech.”). Although the general standard for restrictions on commercial speech is the 

test set forth in Central Hudson, 447 U.S. at 566, “regulations that compel ‘purely factual and 

uncontroversial’ commercial speech are subject to more lenient review than regulations that 

restrict accurate commercial speech.” Sorrell, 272 F.3d at 113 (quoting Zauderer v. Office of 

Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 6510 (1985)). 

The United States Supreme Court explicitly addressed this question in Zauderer v. Office 

of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 6510 (1985)). Zauderer 

holds that in the context of commercial speech compelled disclosure requirements of purely 

factual information are constitutional if they bear a reasonable relationship to an appropriate state 

interest. 471 U.S. at 651. Indeed, Zauderer explicitly states that a commercial speaker’s 

“constitutionally protected interest in not providing any particular factual information ... is 

minimal.” Zauderer, 471 U.S. 651 (emphasis in the original). The standard of Zauderer has 

been applied to compelled disclosure requirements implemented “to better inform consumers 

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about the products they purchase” and to those “intended to prevent consumer confusion or 

deception.” Sorrell, 272 F.3d at 115. 

In Zauderer, the Court considered a state requirement that attorney advertisements for 

contingent-fee representation must disclose “whether percentages are computed before or after 

deduction of court costs and expenses.” 471 U.S. at 633. The Ohio Office of Disciplinary 

Counsel filed a complaint against an attorney for, among other things, not complying with this 

disclosure requirement. Defendant argued that the disclosure requirement should be analyzed 

under an intermediate First Amendment standard, but the Court disagreed: 

The State has attempted only to prescribe what shall be orthodox in commercial 

advertising, and its prescription has taken the form of a requirement that appellant 

include in his advertising purely factual and uncontroversial information about the 

terms under which his services will be available. Because the extension of First 

Amendment protection to commercial speech is justified principally by the value to 

consumers of the information such speech provides, see Virginia Pharmacy Board v. 

Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), appellant's 

constitutionally protected interest in not providing any particular factual information 

in his advertising is minimal. 

Id. at 651 (emphasis in original). The Court explained that such compelled disclosure 

requirements are constitutional if they are reasonably related to the state’s interest. Id. The 

state’s interest in the Zauderer case was “preventing deception of consumers.” The Court found 

that this interest was reasonably related to its requirement that attorneys include factual 

information associated with contingent-fee representation in their advertisements. Id. 

The Second Circuit case of Sorrell applied the reasonable relationship test set forth in 

Zauderer to a disclosure requirement analogous to the one at issue here.6

 In Sorrell, the 

 

6

 The Second Circuit decided Sorrell on November 6, 2001, which was over four months after the Supreme Court 

case of United States Department of Agriculture v. United Foods, 533 U.S. 405 (June 25, 2001), not “a few weeks” 

later, as misrepresented by plaintiff. See Plaintiff’s Memo at 23 n.6. As such, it is binding on this Court. See Wells 

Fargo Bank Northwest, N.A. v. TACA Intern. Airlines, S.A., 314 F. Supp. 2d 195, 198 (S.D.N.Y. 2003) (“It is not for 

this Court to overrule binding Second Circuit precedent.”). 

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legislature of Vermont enacted a statute requiring manufacturers of some mercury-containing 

products to label their products and packaging to inform consumers of their mercury content. 

Vermont’s goal was to reduce mercury contamination. 272 F.3d at 107. The National Electrical 

Manufacturers Association, on behalf of its lamp-manufacturer members, sued the state 

defendants to enjoin the enforcement of the regulation on the theory that it violated their First 

Amendment rights by compelling commercial speech. The Second Circuit found that the 

“compelled disclosure” of “purely factual and uncontroversial commercial speech” is “governed 

by the reasonable-relationship rule in Zauderer.” Id. at 113, 116. The Court explained the 

justification for reasonable relationship test: 

Commercial disclosure requirements are treated differently from restrictions on 

commercial speech because mandated disclosure of accurate, factual, commercial 

information does not offend the core First Amendment values of promoting efficient 

exchange of information or protecting individual liberty interests. Such disclosure 

furthers, rather than hinders, the First Amendment goal of the discovery of truth and 

contributes to the efficiency of the "marketplace of ideas." ... In such a case, then, 

less exacting scrutiny is required than where truthful, nonmisleading commercial 

speech is restricted. 

Sorrell, 272 F.3d at 114-115 (citing, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501, 

134 L. Ed. 2d 711, 116 S. Ct. 1495 (1996); Zauderer, 471 U.S. at 650-51; Robert Post, The 

Constitutional Status of Commercial Speech, 48 U.C.L.A. L. Rev. 1, 28 (2000)) (footnote 

omitted). Applying the reasonable relationship test, the Second Circuit found that the disclosure 

requirement was reasonably related to the state’s interest in informing consumers of products’ 

contents so as to reduce mercury pollution. It specifically noted that to hold otherwise “would 

expose the[] long-established [regulatory] programs, [discussed infra at IIIA,] to searching 

scrutiny by unelected courts. Such a result is neither wise nor constitutionally required.” Id. 272 

F.3d at 116. 

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 Like the commercial disclosure requirements upheld in Zauderer and Sorrell, New York 

City Health Code §81.50 requires the disclosure of accurate commercial information to promote 

informed consumer decision-making and minimize potential consumer confusion. Section 81.50 

requires that “Food service establishments shall post on menu boards and menus the calorie 

content values (in kcal) that have been made publicly available as specified in subdivision (a) for 

each menu item next to the listing of each menu item.” Notice of Adoption at 4. The calorie 

content of food and beverage items is the type of uncontroversial factual information that was at 

issue in Zauderer and Sorrell. 

C. New York City Health Code §81.50 Meets the Reasonable Relationship Test

Mandated disclosure of the calorie content of menu items is reasonably related to the 

City’s objective of decreasing “the negative health effects of overweight and obesity associated 

with excessive calorie intake,” see Notice of Adoption at 3, by promoting informed consumer 

decision-making7 and preventing potential consumer confusion.8 

Like the disclosure requirement in Sorrell, 272 F.3d at 115, Health Code §81.50 

mandates disclosure in order to “better inform consumers about the products they purchase.” It 

 

7

 The Notice of Adoption aptly states: 

By requiring posting of available information concerning restaurant menu item calorie content, so that such 

information is accessible at the time of ordering, this Health Code amendment will allow individuals to 

make more informed choices that can decrease their risk for the negative health effects of overweight and 

obesity associated with excessive calorie intake....Without calorie information, it is difficult for consumers 

to compare options and make informed decisions. 

Notice of Adoption at 1-2. 

8

 The Notice of Adoption explains: 

People do not accurately guess the calorie content of foods and beverages, and calorie information will help 

guide food choices. Recent studies found that 9 out of 10 people underestimated the calorie content of lesshealthy items by an average of more than 600 calories (almost 50% less than the actual calorie content). 

When calorie information was provided on food items, consumers chose high-calorie items 24% to 37% 

less often. ... When consumers are made aware of nutrition information at the point of purchase, disease 

risk perceptions increase, attitudes toward the product change, and purchasing intentions for unhealthy 

products decrease. 

Notice of Adoption at 2. 

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is reasonable for New York City to expect that better informed consumers will eat in a healthier 

fashion. At a minimum, consumers will now have this option. There is scientific evidence that 

labels on packaged food are associated with healthier eating. See AMA House of Delegates, 

Nutrition Labeling and Nutritionally Improved Menu Offerings in Fast-Food and Other Chain 

Restaurants, Resolution: 419 (A-07) (“AMA Resolution”) at 1; see also, n.2 and n.3, infra. New 

York reasonably believes that mandating calorie content information at the point of purchase of 

restaurant menu items will similarly encourage healthier eating. Labeling menu items will create 

conditions that make it easier for consumers to select healthy options. 

 The implementation of Health Code §81.50 is also necessary to prevent “consumer 

confusion.” Zauderer. 471 U.S. at 651. Not only do scientific studies show that average 

consumers are oblivious to, and incorrectly estimate, the calorie content of food and beverages 

they purchase, but a survey of professional nutritionists reveals very similar confusion and 

inaccuracies. See Backstrand J, at n.5, infra; see also, AMA Resolution at 1 (“Consumers, and 

even nutrition professionals, are not able to accurately estimate the caloric content of restaurant 

foods, and studies have found that the provision of nutrition information for away-from-home 

foods can have a positive influence on food- purchase decisions.”). 

Large portion sizes at restaurants make it especially difficult for consumers to know what 

is in their foods. In 1955 a serving of fries at McDonald’s was 2.4 oz that contained 210 calories; 

today’s 6 oz serving has 570 calories. Servings of steak today are 224% larger than what the 

USDA defines as a serving and cookies are 7 times as large as a USDA serving. Consumers are 

attracted to large portions in part by pricing strategies. A 2002 report from the National Alliance 

for Nutrition and Activity found that upsizing from a smaller to larger size of French fries at 

McDonald’s gave the consumer 157% more fries for only a 62% increase in cost. Because there 

11

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is a strong tendency for consumers to eat what they are served and because the size of these 

“servings” had increased dramatically, it is to be expected that consumers cannot accurately 

assess the calorie content of their foods and beverages. Calorie information at the point of 

purchase is thus “appropriately” required “to dissipate the possibility of consumer confusion.” 

Zauderer, 471 U.S. at 651. 

New York City’s strategy to combat obesity by focusing on calories reflects sound 

judgment. This is because, as the FDA’s Working Group on Obesity stated: 

Fundamentally, obesity represents an imbalance between energy intake (e.g., calorie 

intake) and energy output.... Although there is much discussion about (1) the 

appropriate makeup of the diet in terms of relative proportions of macronutrients (fats 

[lipids], carbohydrates, and protein) that provide calories and (2) the foods that 

provide these macronutrients, for maintenance of a healthy body weight it is the 

consumption and expenditure of calories that is most important. In other words, 

"calories count." 

Counting Calories, Report of the Working Group on Obesity, FDA, Center for Food Safety and 

Applied Nutrition (March 12, 2004) (“Counting Calories”) at 3. The FDA concluded that “a 

focus on total calories is the most useful single piece of information in relation to managing 

weight.” Id. at 24. The AMA agreed that “at a minimum, calories [should be labeled] on menu 

boards, since they have limited space.” AMA Resolution at 2.

Health Code §81.50 is thus reasonably related to the New York’s interest in reducing 

obesity by promoting informed consumer decision-making and preventing potential consumer 

confusion. This is why the leading public authorities in the United States have all advocated 

increased disclosure of nutrition information for food and beverages purchased in restaurants. 

The Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity

recommended “increasing the availability of nutrition information for foods eaten and prepared 

away from home.” U.S. Department of Health and Human Services, Public Health Service, 

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Case 1:07-cv-05710-RJH Document 24-2 Filed 07/09/2007 Page 16 of 24
Office of the Surgeon General, Rockville MD (2001). The Institute of Medicine likewise 

recommended that, “[f]ull-service and fast food restaurants should expand healthier food options 

and provide calorie content and general nutrition information at point of purchase.” Institute of 

Medicine, Preventing childhood obesity health in the balance, National Academies Press, 

Washington DC (2005) (“IOM, Preventing childhood obesity”) at 165-166 (“full-service and fast 

food restaurant industries should provide general nutrition information that will facilitate 

consumers’ informed decisions about food and meal selections and appropriate portion sizes”). 

The FDA’s Working Group on Obesity explained that “the pervasiveness of the obesity epidemic 

means that more nutrition information must be presented to consumers in restaurant settings.” 

Counting Calories at 24. The FDA recommended “standardized, simple, and understandable 

nutritional information, including calorie information, at the point-of-sale in a restaurant setting.” 

Id. Finally, the AMA’s Resolution of 2007 stated that “our American Medical Association 

support federal, state, and local policies to require fast-food and other chain restaurants ... to 

provide consumers with nutrition information on menus and menu boards.” AMA Resolution 

at 2. 

There is virtual unanimity among the nation’s medical and public health organizations on 

the need to combat obesity by requiring the effective communication of factual nutritional 

information, and especially calorie information, for food consumed away from home. 

D. The Case of United Foods is Inapplicable to New York City Health Code §81.50

Plaintiff characterizes New York City Health Code §81.50 as requiring restaurants “to 

voice a point of view with which they disagree.” It alleges that the posting of calories compels 

restaurants to express the “point of view that calories are the only nutritional criterion that 

patrons need to consider when making food selections.” Plaintiff’s Memo at 21. For this reason, 

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plaintiff argues, Health Code §81.50 should be analyzed under the principles set forth in United 

States Department of Agriculture v. United Foods, 533 U.S. 405 (2001), in contrast to the 

standard of Zauderer. Plaintiff’s Memo at 21-22. 

Plaintiff’s argument is flatly incorrect. United Foods is inapplicable to the present case 

because Health Code §81.50 does not require restaurants to express a point of view. Health 

Code §81.50 requires only the disclosure of simple factual information. A calorie is “a unit of 

measure for energy obtained from food and beverages.” IOM, Preventing childhood obesity, at 

332. There is nothing subjective or ideological about disclosing the calorie composition of a 

food or beverage. 

If restaurants have the point of view that additional nutritional information is important 

for consumers to receive at the point of purchase, Health Code §81.50 leaves them free to 

communicate this viewpoint and to provide whatever additional data they wish to their 

customers. The ordinance does not prevent restaurants from listing more nutritional information 

than caloric content. The ordinance simply sets a minimum floor for restaurant disclosure. 

To the extent plaintiff’s position can be read to allege that New York City’s plan to 

“highlight” caloric content of foods and beverages is constitutionally suspect because it is underinclusive, see Plaintiff Memo at 24, 3-4, Zauderer holds directly to the contrary: “[W]e are 

unpersuaded by appellant’s argument that a disclosure requirement is subject to attack if it is 

‘under-inclusive’ -- that is, if it does not get at all facets of the problem it is designed to 

ameliorate. As a general matter, governments are entitled to attack problems piecemeal, save 

where their policies implicate rights so fundamental that strict scrutiny must be applied.” 471 

U.S. at 651. 

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Plaintiff’s argument that the mandated disclosure of accurate commercial information to 

promote informed consumer decision-making should be controlled by the principles of United 

Foods rather than Zauderer directly contravenes governing precedent in the Second Circuit. In 

Sorrell the Court of Appeals concluded that the reasonable relationship test should apply to 

requirements that mandate the disclosure of factual commercial information in order to promote 

informed consumer decision-making. Plaintiff’s argument was expressly rejected by the Second 

Circuit in Sorrell. See Sorrell, 272 F.3d at 115-116. The Second Circuit stated: 

To be sure, the compelled disclosure at issue here was not intended to prevent 

"consumer confusion or deception" per se, Zauderer, 471 U.S. at 651 (internal 

quotation marks omitted), but rather to better inform consumers about the products 

they purchase. ... Accordingly, we cannot say that the statute's goal is inconsistent 

with the policies underlying First Amendment protection of commercial speech, 

described above, and the reasons supporting the distinction between compelled and 

restricted commercial speech. We therefore find that it is governed by the reasonablerelationship rule in Zauderer. 

Sorrell, 272 F.3d at 115; accord, Pharmaceutical Care Management Association v. Rowe, 429 

F.3d 294, 310 n.8 (1st Cir. 2005) (“PCMA states that the holding in Zauderer is ‘limited to 

potentially deceptive advertising directed at consumers.’... we have found no cases limiting 

Zauderer in such a way.”). In this case, moreover, New York City has mandated the disclosure 

of accurate commercial information not merely to promote informed consumer decision-making, 

but also to prevent potential consumer confusion. This is precisely the interest served by the 

disclosure requirements at issue in Zauderer. 

United Foods is distinguishable on both the facts and the law. United Foods involved a 

Congressional act establishing the Mushroom Council and authorizing it “to impose mandatory 

assessments upon handlers of fresh mushrooms” for certain projects; however, “most monies 

raised by the assessments [were] spent for generic advertising to promote mushroom sales.” 533 

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U.S. at 443. One large handler of fresh mushrooms challenged these assessments, contending 

the “forced subsidy for generic advertising” violated its First Amendment rights. Id. at 444. The 

Court agreed that the First Amendment was implicated because the handler wanted to “convey 

the message that its brand of mushrooms [were] superior to those grown by other producers” and 

it objected “to being charged for a message ... that mushrooms are worth consuming whether or 

not they are branded.” Id. at 445. The Court found that the “mandated assessments for speech” 

were the “principal object of the regulatory scheme,” and as such, they violated the handler’s 

First Amendment right not to be compelled to support speech with which it disagreed. Id. at 

445-446. 

Unlike the advertising scheme at issue in United Foods, Health Code §81.50 does not 

require association between or among restaurants, nor does it mandate assessments of monies for 

advertising, nor does it mandate that restaurants advertise or speak a certain message. On the 

contrary, the objective of the New York City regulation is to inform consumers of the caloric 

content of the menu items by requiring this data be listed at the point of purchase. Calories are 

“purely factual and uncontroversial” facts regarding the composition of foods and beverages sold 

at a particular restaurant. The placement of this disclosure at the point of purchase does not force 

restaurants to convey an ideological message. See Sorrell 272 F.3d at 113. In United Foods the 

federal government did not have an interest, as does New York in this case, in preventing 

potential consumer confusion. Plaintiff’s interest in not informing its customers of the calorie 

content of its products at the point of purchase is minimal, see Zauderer at 651, and only subject 

to the reasonable relationship test of Zauderer.

9

 

9

 Plaintiff’s invocation of Wooley v. Maynard, 430 U.S. 705 (1977), defies all Supreme Court precedent on the 

subject of commercial speech. See Plaintiff’s Memo at 23. In Zauderer, the Court dismissed the commercial actor’s 

appeal to Wooley by stating that the State “has not attempted to ‘prescribe what shall be orthodox in politics, 

nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’” 471 

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Finally, plaintiff argues that Health Code §81.50 requires restaurants “to convey 

information that the owner does not want to convey on the menu.” Plaintiff’s Memo at 24. But 

the ordinance applies only to restaurants which have already made this information public 

through media outlets outside the point of purchase. Plaintiff’s Memo at 21. Health Code 

§81.50 thus does not present the question of whether a restaurant should convey this information; 

at most it presents the question of how this information should be conveyed by a restaurant. 

Leading public authorities in the United States agree that point of purchase disclosures are more 

effective in promoting informed consumer decision-making and preventing potential consumer 

confusion. See infra III C. New York’s determination that disclosure should occur at the pointof-purchase is therefore reasonable. In Zauderer the Court flatly rejected the “contention” that a 

disclosure requirement “must be struck down if there are other means by which the State’s 

purpose may be served.” 471 U.S. at 651 n.14. Thus even if restaurants have devised one mode 

to communicate its calorie information to the public, New York is not precluded from 

prescribing the means it deems best to serve the pressing public purpose of addressing the 

epidemic of obesity. 

E. The Chilling Doctrine Is Not At Issue

 Relying on Riley et al. v. National Federation of the Blind of North Carolina, Inc. et al., 

487 U.S. 781 (1988), plaintiff argues that because New York City Health Code §81.50 “applies 

only to restaurants that already provide calorie information,” the regulation “chills disclosure.” 

Plaintiff’s Memo at 24. This argument misunderstands Riley, which held that state regulations 

 U.S. at 651. Likewise, New York City is not prescribing this type of noncommercial speech to offend the First 

Amendment’s stricter test. As in Zauderer, the government “has attempted only to prescribe what shall be orthodox 

in commercial [matters], and its prescription has taken the form of a requirement that [restaurants] include ... purely 

factual and uncontroversial information” at the point of purchase. Id. 

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that chill ordinary public discourse must be carefully analyzed under the First Amendment.10 

Health Code §81.50 does not chill non-commercial speech, nor does plaintiff contend that it 

does. At most plaintiff argues that “[s]ome restaurants have already withdrawn their disclosures 

rather than comply with the Regulation.” Plaintiff’s Memo at 24. These disclosures concern 

commercial speech rather than non-commercial speech. 

 Plaintiff’s argument that Health Code §81.50 should be subject to strict First Amendment 

review because it chills commercial speech is flawed factually and legally. It is flawed factually 

because Health Code §81.50 applies only to restaurants that have made “nutritional information 

publicly available on or after March 1, 2007.” Notice of Adoption at 4. Restaurants that have 

withdrawn their nutrition information since March 1, 2007 cannot evade the disclosure 

requirements of §81.50. It is wrong legally because the Supreme Court has made it clear that 

“commercial speech may be more durable than other kinds. Since advertising is the sine qua non 

of commercial profits, there is little likelihood of its being chilled by proper regulation and 

forgone entirely.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. at 

772, n.24; see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 524, 573, (2001), Thomas, J., 

(concurring in part and concurring in the judgment) (“In explaining the distinction between 

commercial speech and other forms of speech, we have emphasized that commercial speech is 

both ‘more easily verifiable by its disseminator’ and less likely to be ‘chilled by proper 

regulation.’”); see also Robert Post, The Constitutional Status of Commercial Speech, 48 

U.C.L.A. L. Rev. 1, 31-32 (2000). At most the Court has said that “unjustified or unduly 

burdensome disclosure requirements might offend the First Amendment by chilling protected 

 

10 Riley applied the strict scrutiny test of the First Amendment to the fee “scheme” portion of a State Act governing 

the solicitation of charitable contributions by professional fundraisers. 

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commercial speech.” Zauderer, 471 U.S. at 651. But Health Code §81.50 is neither unjustified 

nor unduly burdensome. 

IV. CONCLUSION

For the foregoing reasons, we urge the Court to find for defendants and dismiss plaintiff’s 

motion for declaratory relief and a preliminary injunction. 

Dated: July 9, 2007 

Respectfully submitted, 

Attorney for Amicus Curiae: 

/s/ Brian L. Bromberg

Brian L. Bromberg (BB: 6264) 

Bromberg Law Office, P.C. 

40 Exchange Place, Suite 2010 

New York, NY 10005 

(212) 248-7906 

Amicus Curiae: 

Jennifer L. Pomeranz, J.D., M.P.H. Robert Post, J.D., Ph.D. 

Coordinator of Legal Initiatives David Boies Professor of Law 

The Rudd Center For Food Policy & Obesity Yale Law School 

Yale University P.O. Box 208215 

309 Edwards Street New Haven, CT 06520 

New Haven, CT 06520 (203) 432-4992 

(203) 432-6700 

 

Kelly D. Brownell, Ph.D. 

Director 

The Rudd Center For Food Policy & Obesity 

Yale University 

309 Edwards Street 

New Haven, CT 06520 

(203) 432-6700 

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