UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
________________________________________________
:
NEW YORK STATE RESTAURANT :
ASSOCIATION, :
:
Plaintiff, :
:
-against- : No. 07 CIV 5710 (RJH)
:
NEW YORK CITY BOARD OF HEALTH, :
NEW YORK CITY DEPARTMENT OF HEALTH :
AND MENTAL HYGIENE, and Thomas R. Frieden, :
In His Official Capacity as Commissioner :
Of the New York State Department of Health :
And Mental Hygiene, :
:
Defendants. :
_______________________________________________ :
MOTION OF THE RUDD CENTER FOR LEAVE
TO FILE BRIEF AS AMICUS CURIA
Brian L. Bromberg moves for leave to file the accompanying brief on behalf of Jennifer
L. Pomeranz and Kelly D. Brownell of the Rudd Center for Food Policy and Obesity at Yale
University, and Robert Post of Yale Law School (“Rudd Center”), as amicus curiae, urging the
court to deny plaintiff’s motion for declaratory relief and a preliminary injunction.
The Rudd Center is a non-profit organization whose mission is to improve the world’s
diet, prevent obesity, and reduce weight stigma by establishing connections between science and
public policy, developing targeted research, encouraging frank dialogue among key constituents,
and expressing a dedicated commitment to real change. The Rudd Center assesses, critiques, and
strives to improve practices and policies related to nutrition and obesity so as to inform and
empower the public, to promote objective, science-based approaches to policy, and to maximize
the impact on public health. Robert Post, J.D., Ph.D., is the David Boies Professor of Law at
Case 1:07-cv-05710-RJH Document 24 Filed 07/09/2007 Page 1 of 4
Yale Law School. He focuses his teaching and writing on constitutional law and is a specialist in
First Amendment jurisprudence and constitutional law. New York City’s adoption of
Amendment §81.50 Calorie Labeling to Article 81 of the New York City Health Code furthers
the Rudd Center’s goals.
New York adopted Amendment §81.50 Calorie Labeling to Article 81 of the New York
City Health Code on December 5, 2006. Through this regulation, New York mandates that food
service establishments “post on menu boards and menus the calorie content values” that have
been made publicly available on or after March 1, 2007, “for each menu item next to the listing
of each menu item.” See Notice of Adoption of an Amendment (§81.50) to Article 81 of the New
York City Health Code, at 4. The purpose of this regulation is to “allow individuals to make
more informed choices that can decrease their risk for the negative health effects of overweight
and obesity associated with excessive calorie intake.” Id. at 1. Based on the best scientific
evidence available, public health expert recommendations, and substantial research, the Rudd
Center supports and has been supporting menu labeling legislations in cities and states across the
country.
The Rudd Center’s amicus curia brief focuses on the First Amendment challenges made
by plaintiff in its memorandum of law in support of its motion. Compelled disclosure
requirements, like Health Code §81.50 are an important and effective tool to better inform
consumers and prevent them from being confused about the caloric composition of the foods and
beverages they purchase and consume. By giving consumers the tools to allow them to make
better informed choices, citizens of New York City will be able to make healthier choices which
can in turn help them to prevent or reduce obesity and related diseases.
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Amicus seeks leave to file this nineteen page brief urging this Court to deny plaintiff’s
motion for declaratory relief and a preliminary injunction. Jennifer Pomeranz sought and
received consent from both parties to file this amicus brief. Mark Muschenheim, Assistant
Corporation Counsel for the New York City defendants, and Nancy Milburn of Arnold & Porter
LLP, for the plaintiff, consented to this submission.
CONCLUSION
The motion for leave to file a brief as amicus curiae should be granted.
Dated: July 9, 2007
Respectfully submitted,
Attorney for Amicus Curiae:
/s/ Brian L. Bromberg
Brian L. Bromberg (BB: 6264)
Bromberg Law Office, P.C.
40 Exchange Place, Suite 2010
New York, NY 10005
(212) 248-7906
Amicus Curiae:
Jennifer L. Pomeranz (not admitted in S.D.N.Y)
Kelly D. Brownell (not an attorney)
The Rudd Center For Food Policy & Obesity
Yale University
309 Edwards Street
New Haven, CT 06520
(203) 432-6700
Robert Post (not admitted in S.D.N.Y.)
Yale Law School
P.O. Box 208215
New Haven, CT 06520
(203) 432-4992
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