NACS JOINS LAWSUIT AGAINST NEW YORK CITY ON MENU LABELING

As reported in NACS today,

Joint lawsuit seeks to block New York City from overriding FDA’s calorie labeling on menus.
July 17, 2017

NEW YORK – NACS, the New York Association of Convenience Stores (NYACS), Food Marketing Institute (FMI) and the Restaurant Law Center (RLC) have filed a lawsuit in the U.S. District Court for the Southern District of New York to stop New York City from prematurely enforcing menu labeling rules requiring calorie and nutrient information prior to a May 2018 compliance date established by the U.S. Food and Drug Administration (FDA). The lawsuit claims that New York’s premature enforcement is preempted by federal law.

Mayor Bill de Blasio announced in late May that all New York City chain food retailers offering prepared foods, or "restaurant-type foods," would be required to post calorie counts on menu boards. In addition, chain restaurants and retailers would be required to have full nutritional information, not just calories, for standard menu items available on site, and they would 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 in New York City, affecting approximately 3,000 restaurants and about 1,500 food retailer chains.

Per a press release, de Blasio’s office stated that beginning May 22, the city’s Departments of Health and Consumer Affairs would begin enforcing the updated calorie labeling rules by educating businesses during regular inspections. On August 21, both agencies are scheduled to begin issuing notices of violations 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.

On May 2, the FDA announced that it is deferring enforcement of nationwide menu labeling rules until May 7, 2018, to respond to serious industry concerns regarding implementation and to consider possible amendments to alleviate the costs of the rule. Comments on FDA’s menu labeling final rule are due on August 2, 2017.

Although FDA delayed the federal menu-labeling rule, New York City decided to enforce its calorie labeling rules, which bring convenience and grocery stores into the fold. The city’s updated calorie labeling rule will require calorie information about prepared foods sold in chain convenience stores and grocery stores.

The four organizations filing suit offered the following comments:

“The federal law preempts 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, senior vice president 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 preempt localities from doing so,” said James Calvin, president of NYACS.

“Federal preemption 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 RLC.

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 FDA’s nationwide rules are ready. Unless the court acts, New York City has threatened to start levying fines against retailers and restaurants starting on August 21.

On Friday, Energy and Commerce Committee leaders sent a letter to the FDA regarding New York City and similar localities. The letter was signed by Energy and Commerce Committee Chairman Greg Walden (R-OR), Health Subcommittee Chairman Michael C. Burgess (R-TX) and Rep. Cathy McMorris Rodgers (R-WA).

“In 2010, Congress enacted calorie and nutrition labeling standards for chain restaurants and similar retail food establishments with 20 or more locations, which included a federal preemption provision,” wrote Walden, Burgess and McMorris Rogers. “The federal preemption provision is clear: States, cities and other local governments only have the power to pass or implement nutrition-labeling requirements that are the same as the federal requirements, and may only pass or implement different requirements if they request and obtain specific permission from FDA. This includes the effective and compliance dates of the requirements.”

The leaders continued, “On May 1, 2017, FDA published an interim final rule extending the compliance date for menu labeling requirements to May 7, 2018, and establishing a 60-day comment period. We were troubled to learn that despite the clear federal preemption in existing law, some states and municipalities are seeking to impose requirements that are inconsistent with federal nutrition-labeling standards.”