Restaurants fight new menu law

By Chris Amico | Jul 14, 2008

Kevin Westlye

SAN FRANCISCO (Legal Newsline)--A food fight is getting underway over a new law mandating nutrition labels on San Francisco restaurant menus, industry representatives told Legal Newsline.

The law in question, Ordinance 40-08, requires any chain restaurant with 20 or more locations to print the total number of calories, saturated fat, carbohydrates and sodium for every item on its menu, and to put that information right on menus and menu boards.

It would apply only in San Francisco, but there are similar measures being proposed in other parts of the state and country. The ordinance goes into effect on Aug. 1.

With the minimum number of outlets set at 20, the regulation will likely miss most independent San Francisco restaurants.

Most affected will be national chains, especially fast food franchises, and it is those chains, along with the statewide restaurant association, that are fighting back.

The California Restaurant Association is suing the city and county of San Francisco in federal court over the ordinance, asking that it be declared unconstitutional.

The trade group says the law would only confuse customers and violates restaurants' First Amendment rights. The Golden Gate Restaurant Association will stay neutral.

Last year, state Sen. Alex Padilla, a Los Angeles Democrat, proposed legislation similar to San Francisco's ordinance that would have applied to chains with at least 10 locations.

Kevin Westlye, executive director of the Golden Gate Restaurant Association, said his group got in touch with the senator and was able to convinced him to increase the minimum number of outlets to 15.

In exchange, the Golden Gate Restaurant Association did not oppose the bill.

"Any industry would rather not be regulated," he said, "but here was a senator from LA listening to a regional group from San Francisco about a potential state law, so we went neutral."

The bill passed, but Republican Gov. Arnold Schwarzenegger vetoed it.

When the issue arose in San Francisco, the Golden Gate Restaurant Association pushed the minimum chain size to 20 restaurants. Again, it agreed to stay neutral.

As the measure was enacted, Westlye said, most San Francisco restaurants are now in the clear. The law would apply to "maybe a half dozen" GGRA members, he said. Still, it's a door he would have preferred remain closed.

"Many progressive social issues, we consider wedge legislation, and the wedge is pushed in the door, and the wedge never stops pushing," Westlye said. "Certainly this does crack the door open for reducing the number."

California Restaurant Association Executive Director Jot Condie told LNL the issue must be decided at a state level, if menus are to be regulated at all.

The trade group is backing a proposal in the legislature that would make standards uniform across the state.

"We're trying to prevent a situation in California where you've got multiple municipalities and counties passing different types of menu nutritional disclosure ordinances that make it confusing for customers," he said. "We're actually pushing something we viewed as a burden a few years ago. We're trying to mitigate an untenable situation."

Like Westlye, Condie said he believes San Francisco's Ordinance 40-08 will be only the first step.

"It is almost certain, the way these things go, threshold will slowly move southward," he said.

The measure takes clear aim at fast food, stating its intentions to prevent "obesity, diabetes, and other avoidable nutrition-related diseases."

San Francisco City Attorney Dennis Herrera issued a statement in defense of the law stuffed with food metaphors and salted with nutrition facts.

He called CRA's effort to block implementation of the law "not unlike the kind of arterial obstructions that would likely result from frequent meals of a Quizno's footlong Tuna Melt (2,090 calories, 175 grams of fat)."

"I think it's outrageous that fat-peddling chain restaurants are asserting a First Amendment right to keep consumers uninformed about the nutritional contents of their menu items," Herrera said, calling the irony as rich as an order of Outback Steakhouse Aussie Cheese Fries with Ranch Dressing (2,900 calories, 182 grams of fat).

McDonald's vice president and general manager for the Pacific Sierra Region, Michael Andres, filed a brief arguing that the burger giant is being unfairly targeted by the law.

He said competitors who are exempt would have an undue advantage over the national chain.

McDonald's makes a point of taking and filling orders quickly, he argued. A transaction should take between 30 seconds and three minutes.

"If we are forced to comply with this proposed regulation, this clutter on the menu board could create confusion, increase the ordering times, increase our total experience times, reduce throughput at critical times of the day and adversely impact our customer's experience and our business," Andres wrote.

"This regulation is an attempt to dictate the approach and manner of communication of nutrition information in a way that will detract from our customer experience, create unnecessary barriers to service times and lead to customer and employee frustration," he said.

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