On July 14, the Food Marketing Institute (FMI), the National Association of Convenience Stores (NACS) and the New York Association of Convenience Stores (NYACS) as well as the Restaurant Law Center (RLC) filed suit in the U.S. District Court for the Southern District of New York to stop New York City from prematurely enforcing rules on calorie and nutrient information being posted on menus and menu boards in restaurants and food retail stores, including supermarkets and convenience stores.
The Food and Drug Administration (FDA) decided to defer enforcement of nationwide menu labeling rules until May 2018, in order to respond to serious industry concerns regarding implementation and to consider possible amendments to alleviate the costs of the rule. The groups’ lawsuit claims that New York’s premature enforcement is pre-empted by federal law.
The four organizations offered the following comments:
“The federal law pre-empts a municipality from taking matters into its own hands, and this is exactly what New York City is attempting to do,” said Jennifer Hatcher, FMI chief public policy officer. “New York City’s actions threaten interstate commerce and would introduce unneeded elements of confusion into the food retail marketplace.”
“New York City can’t jump the gun and start imposing fines when FDA hasn’t even figured out how disclosures should be made,” said Lyle Beckwith, SVP of government relations for NACS. “Doing that holds stores to standards that no one can meet and undermines the point of having a federal law in the first place.”
“It’s ridiculous for New York City to force convenience store chains to prematurely incur the costs and logistical burdens associated with menu labeling when federal regulations pre-empt localities from doing so,” said Jim Calvin, president of NYACS.
“Federal pre-emption for menu labeling is the law of the land. New York City is overstepping its legal authority in its attempt to enforce menu labeling ahead of the federal compliance date of May 7, 2018. We expect our preliminary injunction request will be granted to this clear violation of federal law,” said Angelo Amador, executive director of the Restaurant Law Center.
As part of the lawsuit, the plaintiffs asked the court to enter an injunction to stop New York City from enforcing its rules until the federal rules are ready. Unless the court acts, New York City has threatened to start levying fines against retailers and restaurants starting on Aug. 21.
FDA first published rules requiring calorie disclosures on menus in 2014.