Industry News | August 28, 2017 | QSR Exclusive Brief

NYC Won't Preemptively Enforce Menu-Labeling Rules

The FDA's menu-labeling law has been delayed three times already. Thinkstock
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New York City is doing something it isn’t exactly known for: Slowing down. The Big Apple reached an agreement with the U.S. Food and Drug Administration regarding the impending enforcement of the controversial menu-labeling law. New York City agreed to delay its rollout of the rules until a federal regulation from the FDA is completed.

The city originally said it would enforce the rules against retailers and restaurants starting August 21, well ahead of the FDA’s planned May 2018 compliance date. The FDA filed court papers in New York City to support action sought by the Food Marketing Institute, the National Restaurant Association, National Association of Convenience Stores, and the New York Association of Convenience Stores.

The agreement reached can be seen here.

“We thank New York City for working with us to come to a workable solution. We will continue to work with the FDA and Congress on behalf of the restaurant industry to ensure a uniform national menu labeling standard is put in place across the country,” says Angelo Amador, executive director, Restaurant Law Center, in a statement.

A judge first requested a four-day delay to allow the parties time to negotiate a long-term agreement for aligning New York City’s enforcement efforts with the federal compliance date.

The lawsuit claimed that New York City’s decision to enforce the rules would be preempted by federal law. In mid-August, the FDA filed a Statement of Interest against the move.

When New York City first revealed its intentions, the National Restaurant Association responded by saying its concerns had come to fruition—state and city governments were taking advantage of yet another menu-labeling delay.

“Just as we feared, city and state governments are taking advantage of the federal menu labeling delay. Federal preemption on menu labeling is the law of the land. The one year delay of implementation does not negate that preemption therefore New York City's announcement is in violation of federal law," said Cicely Simpson, executive vice president, National Restaurant Association, in a statement at the time.

The May announcement to delay the rule extended the compliance date to May 7, 2018. It was the third delay for the controversial rule, which requires restaurants and other away-from-home food retailers to include calorie counts on menus and signage. Given that the rule was part of former President Barack Obama’s Affordable Care Act, many saw this delay as just a window to cut out the current health care plan and the rule altogether. But New York wasn’t going to wait around.

Mayor Bill de Blasio released a statement saying that all “chain restaurants and retailers will be required to have full nutritional information—not just calories—for standard menu items available on site, and they will have to post a statement about the daily recommended caloric intake of 2,000 calories. This rule is required for all chain restaurants with 15 locations or more nationwide, affecting approximately 3,000 restaurants and about 1,500 food retailer chains.”

This kind of action isn’t exactly unprecedented for New York City. In 2008 it became the first jurisdiction to require calorie labeling in chain restaurants.

The rule applies to any restaurant or retailed serving food for away-from-home consumption with more than 20 locations “doing business under the same name … and offering for sale substantially the same menu items” will be required to label their menus and signage with calorie counts, says the FDA website. This includes franchises that operate with the same name as other franchises or parent companies.

Restaurants and retail chains are required to list calorie counts for individual foods and beverages as well as combo meals next to the name or price of the item. Where self-service foods are offered, such as at salad bars and buffets, calories must be shown on signs near foods.

This included:

  • Total calories
  • Calories from fat
  • Total fat
  • Saturated fat
  • Trans fat
  • Cholesterol
  • Sodium
  • Total carbohydrates
  • Fiber
  • Sugars
  • Protein

It was also going to be a rule that nutritional facts must also substantiated in labs to prove that they are accurate.

And for menus and menuboards to provide context by stating that it is recommended that adults consume 2,000 calories a day, but that individual calorie needs vary, says the FDA’s website.