Give Me Two Preemptions with that Burger

By September 12, 2007Briefly Legal

Peter Lattman at the Wall Street Journal’s Law Blog today ponders the doctrine of preemption through which federal regulations supersede state rules, depending on how the law is written. We touched on the topic here. Lattman writes:

We love preemption. It’s among our favorite legal doctrines, right up there with in loco parentis and trespass to chattels. We’re not sure why, but we find it titillating when federal law conflicts with state and local laws.

Yesterday a federal judge in Manhattan ruled New York City may not force fast-food joints to list calories on their menu boards. Why? Preemption! Judge Richard Holwell struck down a rule that required fast-food restaurants to post caloric information because it was technically superseded by a 1990 federal regulation requiring the disclosure of the same. Wrote the judge: “The city has chosen a regulatory approach that imposes different obligations than federal regulation.” Here’s the NYT story.

NYC’s arguments:

In papers filed to Judge Holwell this year, the city said it had proposed the regulation to counteract “an obesity epidemic” in New York. According to the papers, more than half the city’s residents are overweight or obese and have an increased risk of diabetes, heart disease, stroke and cancer. The city argued that posting calorie information in a prominent place would have had “a substantial potential for public health impact” and that consumers were likely to decrease their intake if they knew how many calories they were eating.

Boy, hope Mayor Bloomberg never becomes HHS Secretary.

Manufacturers and employers are keenly sensitive to health-care costs, and you see business devoting lots of resources to preventive care and “wellness.” But using state-by-state, city-by-city regulations to bully the public into changing their behavior has its own costs, including all the unexpected consequences of having government make business decisions.

BTW, today at 11 a.m. the Senate Judiciary Committee holds a hearing on federal preemption and state regulations. Details here.

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