Menu Labeling: Get It Right, or Get Sued?

You probably shuddered when your local government insisted you post the nutritional content of your menu items, but you dutifully complied. But now you face another, related threat: lawsuits over the accuracy of the information you provide.

Apparently, some restaurants either are fudging the numbers or haven’t done a correct recipe analysis. A recent study by Tufts University discovered a trend of under-reporting of caloric content of foods sold in restaurants and retail stores. The researchers determined that restaurant meals averaged 18 percent more calories than posted, while packaged foods had an average of 8 percent more calories than their labels suggested. The researchers examined meals from a variety of national full-service and quick-service restaurant chains along with grocery store frozen meals. The authors concluded that the sample was too small to conclude that underreporting is rampant, though.

Two years ago, Applebee’s Weight Watchers menu items attracted a rash of (still pending) state and federal class action and consumer lawsuits alleging that the company misrepresented the fat and calorie content of the theoretically diet-friendly dishes. Some legal eagles are predicting that the Tufts findings might spur a similar wave of class action lawsuits by consumers claiming that the incorrect information is partly to blame for illness related to obesity, diabetes and other conditions.

Attorneys at Morrison & Foerster suggest that California is a likely market for any of these kinds of lawsuits. Besides having a broad unfair competition law, California lawmakers recently enacted Section 114094 of the Health and Safety Code, which requires that food facilities with at least 19 other locations disclose nutritional information for their menu items. For now, restaurants supply the data using a brochure on the table, a menu insert or a table tent; beginning January 1, 2011 the calorie content must appear on the menu.

“Though as of now there is no private right of action under this section, plaintiffs will likely argue that violation of (the code) provides the foundation for a claim of unlawful conduct under California’s Business and Professions Code, section 17200. Plaintiffs are also likely to bring claims under sections 17200 and 17500 for false and deceptive advertising,” the Morrison & Foerster attorneys note.

For more information, visit www.mofo.com.