New York will enforce menu-labeling effective immediately even as FDA delays national requirement

23-May-2017 - Last updated on 16-Jun-2017 at 12:20 GMT

With many of the nutrition policies drafted under the Obama Administration now in limbo, New York City’s Departments of Health and Consumer Affairs are taking action into their own hands and as of May 22 began enforcing controversial menu labeling at chain restaurants and food retailers.

Inspectors from the New York departments initially will enforce through education requirements that chain restaurants and retailers post calorie counts for prepared ‘restaurant-type foods’ on menu boards, have full nutritional information available on site for standard menu items and post a statement about the daily recommended intake of 2,000 calories, New York City Mayor Bill de Blasio announced May 18.

This educational grace-period will end Aug. 21 at which time both agencies will begin issuing notices of violation subject to $200 to $600 fines for failure to comply with the new rule, which is required of all chain restaurants with 15 locations or more nationwide, including about 3,000 restaurants and 1,500 food retail chains, according to the departments.

The move comes at a time when many in the food and beverage industry are pushing back against new labeling requirements, such as asking for a delay to the upcoming July 2018 deadline for new Nutrition Facts label. It also follows a formal delay announced earlier this month of the federal menu labeling statute and regulations, which FDA is reviewing for regulatory and enforcement concerns.

FMI is surprised & frustrated by announcement

New York's announcement took by surprise the Food Marketing Institute, which said in a statement that it was frustrated by the move.

“The announcement violates both the compliance date and the preemption provisions of the federal ‘menu labeling’ statute and regulations,” FMI said May 20. “These significant concerns get amplified by the city’s unexpected cation, which did not include any prior or formal notification to food retailers and provides only a single business days’ notice prior to enforcement.”

New York City administration disagrees with this claim it did not give sufficient warning to retailers. The departments note that in 2015 the city updated its Health Code to require chain restaurants to post calorie information for menu items, but delayed the enforcement in anticipation for an identical federal rule that earlier this month was delayed once again for a year.

FMI also complains the situation is “exacerbated by a lack of training materials, oversight procedures and discussions to resolve problems.”

While New York City may not have provided guidance, FDA did for similar requirements mandated under the Affordable Care Act that are now on hold.

As with the New York City decision, FMI was not happy with the FDA guidance and rule – arguing that supermarkets need more flexibility around labeling local food sold at only a few locations and the ability use one sign or menu board for products sold in the prepared foods area or salad bar.

The trade group continues to lobby for these carve-outs, along with the allowance liability protections for good-faith compliance efforts, which it says offer retailers “common sense flexibility” and will allow “grocery stores to provide more information to customers in a more efficient and accurate, less costly manner.”

It adds that the application of restaurant style ‘menu labeling’ in grocery stores creates “tremendous challenges,” and it requests “FDA, city officials and other entities … employ a thoughtful, constructive approach to resolve” them.

Will other jurisdictions follow New York’s lead?

Many public health advocates, including the American Heart Association, share New York City’s disappointment in FDA’s decision to delay implementation of federal menu labeling, and some are urging other cities and states to follow the city’s lead to move forward despite the federal government’s actions.

“It’s been seven long years since the national menu labeling law passed. Other jurisdictions with their own state and local menu labeling policies should once again follow New York City’s lead and go ahead and implement their policies, especially in grocery and convenience stores, which increasingly compete with restaurants for Americans’ away-from-home food dollars,” Margo Wootan, director of nutrition policy at the Center for Science in the Public Interest, said in statement.

If this happens, retailers may have to navigate a patch-work of state and city labeling laws, which would be more difficult than enacting one set of rules required across the nation.