Despite their permanent status on Santa’s naughty list, trial lawyers received an early Christmas present this year: menu labeling laws. In 2007, about 20 cities and states introduced proposals to mandate in-your-face calorie counts on restaurant menus. And a few became law.

While restaurants plan their defense against another push for labeling legislation in 2008, the Center for Science in the Public Interest (CSPI) is already outlining the food cops’ next play: labeling litigation. According to the New York Times Health blog, CSPI recently investigated the accuracy of calorie counts currently posted on menus and found that the figures came up short. The group claimed that the actual dishes varied from menu tally by as much as 350 calories. That’s a 53 percent difference—far outside the 20 percent “safe harbor” variance included (grudgingly) in many menu-labeling laws. 

The reason for the divergence is simple enough. Restaurants have kitchens, not manufacturing plants. Chefs are people, not programmed machines. And menu items are not pre-packaged foods. So unlike the identical contents of countless TV dinners, the nutrients in every restaurant order are as distinctive as the customers requesting them.

But made-to-order may translate to “negligence” in the courtroom. And a few hundred extra calories could easily turn into millions of dollars in settlements.