Restaurants That Lack Calorie Counts Face Fines

http://www.nytimes.com/2008/07/19/nyregion/19calorie.html

July 19, 2008
Restaurants That Lack Calorie Counts Now Face Fines
By JAMES BARRON

Mark Loersch, who teaches nutrition to high school students, noticed something in a McDonald’s restaurant on West 42nd Street in Midtown Manhattan that he had not seen back home in Onalaska, Wis.: calorie counts posted next to the prices. A Big Mac has 540 calories, the sign said.

“It’s a good idea,” Mr. Loersch said, adding that knowing how many calories are in each item on the menu might make customers choose lighter ones. “A Big Mac is 300 calories less than an Angus mushroom and Swiss burger.” (Well, almost. The difference is actually 280 calories.)

The signs that caught Mr. Loersch’s eye on Friday are now required at many chain restaurants in New York City, and as of Saturday, city health inspectors can begin issuing citations that carry fines to restaurants that do not have calorie information posted with their prices.

Since May, inspectors have had the authority to cite restaurants that did not conform to the city’s calorie-posting rules. As of July 12, 277 restaurants had been cited.

But the health department had said there would be a “no fine” period at first, and that period was extended after the New York State Restaurant Association challenged the rules in federal court. The United States Court of Appeals for the Second Circuit eventually denied the restaurant association’s request to extend the no fine period beyond midnight Friday. The fines will range from $200 to $2,000.

On Friday, a check of half a dozen chain restaurants in Midtown showed that all had calorie counts posted. That was a change from early May, when the McDonald’s at 1560 Broadway, at West 46th Street, was one of the first restaurants cited for not having calorie figures posted.

Another restaurant cited on the first day calorie violations were issued, the Burger King at 561 Seventh Avenue, at West 40th Street, also had calorie figures on the signs above the counter.

“Scary, as I stand here holding, like, 3,200 calories,” said Nick Perna, a marketing specialist who had just bought a Whopper with cheese, French fries and a soft drink.

A colleague, Derek Cummings, took a closer look at the sign and said the total was only 1,720 calories. According to the sign, that was the maximum for a Whopper meal. The minimum was 1,260. The range covered extras a customer could order, like extra fries and extra cheese.

“I went sans cheese,” Mr. Cummings said, holding his own Whopper, “so I saved something.”

The calorie counts are part of a health department campaign that affects more than 2,000 restaurants, or about 10 percent of all restaurants in the city. The postings are required only in restaurants with more than 15 outlets nationwide, and the rules were supposed to take effect in April. But they were delayed while the restaurant association took the city to court.

Judge Richard J. Holwell, of United States District Court in Manhattan, ruled against the restaurant association, and the association took the case to the appeals court. The case has yet to be decided, but the judges refused to delay the fines any longer.

“If the court should find in our favor and they’ve started fining people, the question arises, are they going to give the fines back?” Chuck Hunt, a spokesman for the restaurant association, said on Friday.

He said his group had never been opposed to providing information about the calorie counts. “It’s a situation where the commissioner of health has been so adamant in his insistence on the way in which it must be done that has kept us in opposition,” Mr. Hunt said, referring to Dr. Thomas R. Frieden, the commissioner.

Had there been some flexibility, Mr. Hunt added, “I doubt we would have pursued the legal challenge as far.”

Some customers said the calorie counts might change people’s menu choices. But Tina Nguyen, an astrologer who was on a break from a class she was taking for a real estate license when she stopped at the Starbucks at 1372 Broadway, did not like the idea that the city had required the figures to be posted.

“This is starting to feel Big Brotherish,” she said. “If they want to change our eating behavior, the city could offer courses instead of picking on these restaurants.”