NYC just announced that its revised calorie labeling rule for food service establishments will take effect on May 22, 2017, and will begin being enforced with notices of violation subject to fines on August 21, 2017. This pre-dates the recently re-delayed effective date for federal menu labeling of May 7, 2018.
The NYC rule, like FDA’s federal rule, essentially requires:
- Calorie labeling for standard menu items of restaurant-type food, including, multiple-serving menu items, combination meals with choices, self-service food, food on display, and menu items with a choice of toppings;
- Having comprehensive nutrition information on-site and providing the information to anyone who requests to see it; and
- Inclusion of two new nutrition statements on menus and menu boards, specifically :
- “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”
- “Additional nutritional information available upon request.”
Nevertheless, the NYC and federal rules are distinct inasmuch as a “covered establishment” in NYC means an establishment that is part of a chain with 15 or more locations nationally, whereas the federal rule applies to a chain with 20 or more locations nationally. May the NYC rule apply to smaller chains?
Federal menu labeling is provided for statutorily by FFDCA § 403(q)(5)(H) (codified at 21 U.S.C. §343(q)(5)(H)). Section 747 of the Consolidated Appropriations Act, 2016 (Pub. L. 114–113), which originally delayed menu labeling implementation, in effect, delayed only any funding for enforcement of FDA’s 12/01/2014 final rule on menu labeling (§ 101.11) until May 5, 2017. The Act did not amend/alter §343(q)(5)(H).
FFDCA § 403A(a)(4) provides:
(a) … no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—
* * *
(4) any requirement for nutrition labeling of food that is not identical to the requirement of section 343(q) of this title, except that this paragraph does not apply to food that is offered for sale in a restaurant or similar retail food establishment that is not part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items unless such restaurant or similar retail food establishment complies with the voluntary provision of nutrition information requirements under section 343(q)(5)(H)(ix) of this title ….
21 U.S.C. §343-1(a)(4).
Pursuant to this FFDCA national uniformity provision, it appears that State/local nutrition labeling laws not identical to §343(q)(5)(H) — which the NYC rule is not, at least with respect to covered establishments — already are preempted.
This being the case, at a minimum, NYC conceivably could be halted from applying its menu labeling rule to any food service establishment that is part of a chain with fewer than 20 locations nationally. At most, a court could halt the NYC rule from being enforced at all.
