King County Menu Labeling Goes into Effect August 1, 2008--Yet Another Call for Preemption?
Effective August 1, King County, Washington, will impose the strictest menu labeling law in the nation. King County’s law imposes menu labeling requirements, on restaurant chains that have the following characteristics:
1. The same name.
2. Operating permits from Public Health—Seattle and King County.
3. Fifteen or more locations in King County or nationwide—this legislation does not affect food establishments with 14 or fewer locations.
4. Gross annual revenues of $1 million or more.
5. Standardized menu items that use standard recipes.
The county won’t start imposing fines until January 2009. Yet for small restaurants that just meet the 15-restaurant and $1 million thresholds, or for franchise owners, these requirements can be onerous, especially if the restaurant maintains a large menu or large variety of seasonal foods. Costs for nutritional testing on a variety of products can be prohibitively expensive. Will this law have the perverse effect of limiting consumer choice and use of seasonal, local products on menus?
Even for larger restaurant chains that already provide nutritional information, King County’s law will impose requirements that may increase costs because King County’s rules may be inconsistent with nationwide distribution and marketing.
Restaurants in both New York City and San Francisco faced with similar (though arguably less onerous) local regulations are challenging the laws in those cities. Among other things, there are serious First Amendment issues (though lawyers in New York City are apparently relying on the King County law to show how it could be made to comply with First Amendment speech protections).
Menu laws are also being challenged on grounds of federal preemption (even though the FDA has apparently taken the position that its laws do not preempt local menu regulations). I have written several times on this blog about the need for federal preemption. No area demands federal preemption more than regulation of chain restaurant menus.
For evidence why the federal and not local governments should be regulating nutrition, look at King County’s self-stated reasons for passing its law: “rising health care costs, our growing number of obese, diabetic and chronically ill residents, and a lack of information to inform choices that improve our health.” Are any of these reasons unique to King County? The studies relied on by King County are national and not unique to King County. The restaurants targeted are national and are generally not King County-based restaurant chains.
Only the national government has the resources to investigate the obesity epidemic—something that has baffled scientists and for which there is no proven cause or cure. Before our restaurant industry is impacted and consumer choice is further limited, shouldn’t we devote the full resources of the federal government to the problem? Do we expect the obesity epidemic be solved by an inconsistent patchwork of local county laws?
A Cry for Federal Preemption?
In Arkansas, a putative class action has been filed by consumers who allege violations of consumer protection laws of four states because they purchased Tyson chicken products with packaging labeled, “Raised Without Antibiotics.” The plaintiffs claim that the packaging was “deceptive,” and they were “de-frauded” because the feed consumed by the chickens contained Ionophores, which is classified by the FDA as an antibiotic.
The putative class action follows a Lanham act case filed by Tyson’s competitors in the U. S. District Court, District of Maryland. The product labeling was approved by the USDA under its authority from the Poultry Products Inspection Act (“PPIA”), 21 U.S.C. § 451. Despite approval from the USDA, the court ruled that the competitor’s claims could proceed and enjoined Tyson from future use of such labeling. The court reasoned that the USDA regulates labeling, not advertising. Deciding that the labeling was also advertising, the court held the labeling was fair game for a Lanham act suit.
Effectively, the court opened the floodgates for class action litigation for labeling approved by the USDA. The decision is significant. It promises to energize the growing movement of consumer labeling class action work. The decision may also have a destabilizing effect on producers that rely on FDA and USDA rulings and regulations. Already, producers of organic milk face challenges under state consumer protection acts for alleged product mislabeling of milk as organic, despite organic certification approved by the USDA.
One of two things will happen: (1) full-time product-labeling litigation work for lawyers or (2) legislation by the U.S. Congress enabling federal preemption. The latter is obviously the more sane course. Nothing is more inefficient than regulation of product labeling through state consumer class action claims. Expert regulatory agencies such as the FDA and the USDA, not judges and juries, should decide what constitutes appropriate labeling and advertising of food products.
