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NEW YORK — Several industries are banding together to challenge New York City's rule requiring chain food retailers that offer prepared foods to post calorie counts on menu boards.
The city is moving forward with the rule despite the Food and Drug Administration's (FDA) May announcement that it was delaying a similar federal regulation, as CSNews Online previously reported.
NACS, the Association for Convenience & Fuel Retailing, the New York Association of Convenience Stores (NYACS), the Food Marketing Institute (FMI), and the Restaurant Law Center filed suit in the U.S. District Court for the Southern District of New York to stop the city from enforcing rules requiring calorie and nutrient information prior to a May 2018 compliance date established by the FDA.
The lawsuit claims that New York's premature enforcement is preempted by federal law.
"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."
In 2008, New York City became the first jurisdiction to require calorie labeling in chain restaurants. The move was followed by similar requirements in numerous cities, counties and states across the country. Calorie labeling requirements became a part of the Affordable Care Act in 2010.
In 2015, the 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.
However, just days before the federal rule was set to go into effect on May 5, the FDA submitted an interim final rule to the White House Office of Management and Budget that signaled a delay in the agency's final menu labeling rule.
"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."
As part of the lawsuit, the plaintiffs asked the court to enter an injunction to stop the city from enforcing its rules until the federal rules are ready.
The city's Departments of Health and Consumer Affairs began enforcing the updated calorie labeling rules by educating businesses during regular inspections on May 22. After a three-month education period both agencies will begin issuing notices of violation subject to fines for not following the updated rule on Aug. 21. Chain restaurants and food retailers that are not in compliance will be subject to fines ranging from $200 to $600.
"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.