Metro can require restaurants to post calories

Opinion backs menu labeling By Rachel Stults • THE TENNESSEAN • January 1, 2009 The Metropolitan Board of Health has the right to require restaurants to post calorie content on their menus and menu boards, according to a legal opinion that backs a controversial proposal to regulate how at least 500 area restaurants sell food items to customers. The Metro Law Department opinion states that the Board of Health has the authority to adopt a regulation governing menu labeling, that no state or federal law pre-empts the regulations and that the regulation is likely to be held constitutional. Health officials say obesity here has tripled in the past 20 years. In an effort to fight the trend, the board of health is considering a regulation that would require all Davidson County restaurant chains with 15 or more establishments to include calorie information for items on their menus. The legal opinion says if the board determines that menu labeling is required to protect public health, it is the board's duty to do it. "We're disappointed in the opinion," said Walt Baker, who represents about 150 of Tennessee's restaurants. "It was our sense that the health department only had the authority granted to it by state and there was nothing specific in state law that had to do with menu labeling. We felt like the dots never connected, but our issues still remain the same. The legal opinion was a tactical element of this whole process." "The fact is it doesn't make any sense to us on a city-by-city basis. The fact that Nashville does it and Franklin doesn't will not solve the problem. We want to be part of the solution, but the solution is not one little dose at a time. It's bigger than that." Under Nashville's proposal, calorie data would be printed next to the menu item, in similar font and size as the item or its price. Restaurants also would have to post a notice that adults should limit their daily intake to 2,000 calories. Board sought opinion The board will vote on the measure at its February meeting. The board had asked for a legal opinion to be rendered after several restaurant representatives in a November public hearing questioned whether a city board had the authority to require menu regulation. During the public hearing and the subsequent weeks allowed for written feedback from the public, there were 47 votes in favor of the regulation. There were 37 votes against the move, with all but one opposing vote coming from the restaurant industry, said Brian Todd, spokesman for the Metro Department of Health. Baker said he was surprised that the legal opinion went so far as to say it's the board's duty to require menu labeling if board members see it as a way to protect public health. "That's really narrow language," he said. "And they're talking calories, and there are so many other nutritional facts that come into play — calories from fat content, there's proteins, there's carbs, there's sugars. This whole thing is about calories, and, to me, calories is an oversimplification of the issue." Contact Rachel Stults at 615-726-8904 or rstults@tennessean.com.