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New York City Doesn't Care About the Menu-Labeling Delay

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Calorie-counting rules are headed to the Big Apple, whether restaurants are ready for them or not.
By Danny Klein May 2017 Chain Restaurants

Springtime in New York just got a whole lot more interesting. Forget the federal government, the Big Apple announced Thursday that it plans to enforce the same calorie-labeling laws recently delayed (again) by the Food and Drug Administration.

Starting May 22, the Departments of Health and Consumer Affairs will begin educating businesses during regular inspections in New York. Come August 21, both agencies will take the gloves off and start issuing notices of violation subject to fines for not complying. Chain restaurants and food retailers will have to fork up between $200—$600 in fines.

The National Restaurant Association responded Friday. Not surprisingly, the organization has some concerns with New York’s initiative.

“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," says Cicely Simpson, executive vice president, National Restaurant Association.

The May announcement 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 isn’t going to wait around.

Mayor Bill de Blasio said in a statement 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.”

“We are all tempted to make unhealthy choices, but with these new, common-sense rules, New Yorkers will have the information to make better choices and lead healthier lives," Mayor de Blasio said. "We can no longer wait for federal action, and urge other cities to follow our lead."

In 2008, New York City became the first jurisdiction to require calorie labeling in chain restaurants. And in 2015, the city “updated its longstanding Health Code rule requiring chain restaurants to post calorie information for menu items, but delayed enforcement in anticipation of an identical federal rule that would make calorie information available in chain restaurants and chain food retailers nationwide.”

When that didn’t happen, New York decided to proceed anyway.

This is likely going to be a tumultuous situation, as the NRA pointed out. Will restaurants ignore the rule and pay the fines, or just wait for a court to intercede? Either way, it’s going to be an interesting few months.

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.