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The Skinny on the Federal Menu-Labeling Law & Why it Should Survive a First Amendment Challenge

40 Pages Posted: 4 Feb 2011 Last revised: 3 Jun 2011

Dayna B. Royal

Cumberland School of Law

Date Written: June 1, 2010


In America’s battle of the bulge, the bulge is winning. Contributing to this obesity epidemic is Americans’ increasingly widespread practice of eating at restaurants where deceptively fattening food is served to patrons who grossly underestimate the calories in their meals.

To combat this problem and promote public health, Congress enacted a federal menu-labeling law, which requires that restaurants post calorie information next to menu offerings. The constitutionality of this law has yet to be tested in court. But New York City’s law, enacted prior, has survived First Amendment scrutiny.

Like New York’s menu-labeling law, the federal law should withstand a First Amendment challenge. Though the federal law affects commercial speech, it is a reasonable means for accomplishing a legitimate government interest - the reduction of consumer deception and the promotion of public health. The skinny on the federal menu-labeling law is that it is an appropriate means to inform patrons’ menu choices at restaurants and help shrink America’s waistline.

Keywords: Constitution, First Amendment, Obamacare, Healthcare Legislation, Commercial Speech, Zauderer, Central Hudson, Patient Protection and Affordable Care Act

Suggested Citation

Royal, Dayna B., The Skinny on the Federal Menu-Labeling Law & Why it Should Survive a First Amendment Challenge (June 1, 2010). First Amendment Law Review, Forthcoming. Available at SSRN:

Dayna Brooke Royal (Contact Author)

Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States


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