NYC Ignores Federal Menu-Labeling Rule Extension, Moves Ahead With Nutritional Info Requirements

Eighty-three Family Fare Supermarkets in five states now are displaying caloric information, encouraging store guests to make healthier food choices.

Some retailers, such as 83 Family Fare Supermarkets in the Midwest, already have installed menu boards.

Mayor Bill de Blasio on Friday, May 19, announced that all New York City chain food retailers offering prepared foods, or “restaurant-type foods,” will be required to post calorie counts on menu boards. In addition, 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.

Bill de Blasio
Bill de Blasio

In 2015, New York 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. Earlier this month, the federal government announced it would delay enforcement of these rules for a year, and the city say it has decided to enforce its updated calorie labeling rules as planned.

Starting Monday, May 22, the Departments of Health and Consumer Affairs will begin enforcing the updated calorie labeling rules by educating businesses during regular inspections, according to the city. On Aug. 21, both agencies will begin issuing notices of violation subject to fines for not following the updated rule. Chain restaurants and food retailers that are not in compliance will be subject to fines ranging from $200 to $600.

“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,” said de Blasio. “We can no longer wait for federal action, and urge other cities to follow our lead.”

Food Marketing Institute (FMI) President and CEO Leslie G. Sarasin says her organization is both surprised and frustrated by the announcement, noting that it “violates both the compliance date and the preemption provisions of the federal ‘menu-labeling’ statute and regulations, which have been formally postponed and are undergoing review by the U.S. Food and Drug Administration until May 2018 due to substantive regulatory and enforcement concerns.”

Sarasin adds, “These  significant concerns get amplified by the city’s unexpected action, which did not include any prior or formal notification to food retailers and provides only a single business day’s notice prior to enforcement; a situation exacerbated by a lack of training materials, oversight procedures and discussions to resolve problems.

“The supermarket industry for several years has sought common sense flexibility, such as liability protections for good-faith compliance efforts, allowing the use of a central menu board for a salad bar, and creating a regulatory environment that preserves the opportunity for selling locally-made and locally-sourced foods. These are sensible modifications that can easily be incorporated, and that will allow grocery stores to provide information to customers in a more efficient and accurate, less costly manner. We ask for FDA, city officials and other entities to begin to employ a thoughtful, constructive approach to resolve some of the tremendous challenges associated with application of chain restaurant style ‘menu labeling’ in a grocery store environment.”

In 2008, New York City led the nation by becoming the first jurisdiction to require calorie labeling in chain restaurants. Numerous cities, counties and states followed suit and, in 2010, calorie labeling requirements became a part of the Affordable Care Act.

According to the city, “New Yorkers can look forward to several improvements in chain convenience stores, grocery stores and restaurants as a result of the updated calorie labeling rule, including:

• Calorie information about prepared foods sold in chain convenience stores and grocery stores.

• A new statement on menus and menu boards at all chain restaurants, chain convenience stores and grocery stores to give more information about calorie needs. The statement reads, “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”

• Additional nutrition information about menu items available onsite upon request, including total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, dietary fiber, sugar and protein.

“The calorie labeling rule complements the health department’s sodium warning rule, which requires restaurants to place salt shaker icons next to menu items that contain 2,300mg of sodium or more, the daily recommended limit. The sodium warning rule also states that these restaurants must post a warning where customers place their orders that high sodium intake can increase blood pressure and the risk of heart disease and stroke. In April, the health department announced the end of its legal battle with the National Restaurant Association over the sodium warning rule. As of May 12, nearly nine out of 10 NYC chain restaurants were in compliance with the sodium warning rule.”

About The Author

A former newspaper editor and publisher who has handled digital duties for The Shelby Report since 2011. She once enjoyed leisurely perusing the grocery store aisles but, since having a baby in 2016, is now an enthusiastic click-and-collect shopper.

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