Preemption and the obesity epidemic: State and local menu labeling laws and the nutrition labeling and education act

Obesity is widely recognized as a preventable cause of death and disease. Reducing obesity among adults and children has become a national health goal in the United States. As one approach to the obesity epidemic, public health practitioners and others have asserted the need to provide consumers with information about the foods they eat. Some state and local governments across the United States have introduced menu labeling bills and regulations that require restaurants to post information, such as calorie content, for foods offered on their menus or menu boards. A major dilemma is whether state and local menu labeling laws are preempted by the federal Nutrition Labeling and Education Act (NLEA). While few courts have addressed this issue, ongoing litigation in New York City provides an early glimpse of judicial interpretation in this area. This article explores these preemption issues, arguing that appropriately written and implemented menu labeling laws should not be preempted by the NLEA. We offer guidance for states and localities that wish to develop and implement menu labeling laws.