The Food and Drug Administration has filed court papers in support of a suit filed in New York City last month by the Food Marketing Institute, the National Restaurant Association and others.
The FDA is seeking to aid the other plaintiffs in an effort to block enforcement of New York’s Regulation 81.50, which is scheduled to take effect on Monday.
The law would require all foodservice establishments in the city that have 15 or more locations nationwide to display calorie counts and other nutritional information on standard menus or menu boards.
The regulation mirrors similar federal rules that were expected to take effect in May. Both new sets of laws included grocery store chains that serve prepared foods.
Although New York City has mandated nutritional transparency at restaurant chains for nearly a decade, food retailers are a new addition.
The FDA ultimately opted to delay enforcement of its nationwide parameters until May 2018, creating a 12-month limbo for the approximately 3,000 restaurants and 1,500 food retailers located in New York City.
“There are interesting policy issues here, but legally it comes down to this dry issue of federal preemption,” Bob Hibbert, partner at Morgan Lewis said.
The firm advises clients in the food and agricultural industries on federal regulation.
Hibbert added that New York City feels its rules are not nullified by the federal government’s timeline.
“Congress has stepped in and said there should be one set of rules at the federal level, and the states need to defer,” said Hibbert, meaning that New York City must relax its own enforcement until the federal government is ready to apply its similar law next year.
New York City has been requiring calorie labeling in some form at restaurant chain since 2008, predating the practice’s inclusion in the Affordable Care Act in 2010.
For this reason, the city believes it is within its rights to begin enforcing what amounts to updated rules on Monday.
Hibbert said that before the FDA decided to issue blanket rules that cover the entire nation, New York City’s requirements were perfectly legal.
But now, the city is expected to act according to the federal government’s timeline, even if some of the planned practices have already been in place for a decade.
“New York is saying, ‘We think that we can enforce it anyway,’ and the plaintiffs and the FDA are saying, ‘No, you can’t,’” Hibbert said. “Federal preemption includes enforcements, and you have to wait.”
Besides the addition of qualifying grocery stores to the regulations, which is part of both the impending national rules and local New York City laws, the FDA only requires chains with 20 or more national locations to comply, while New York City sets the minimum at 15 locations.
Businesses that fall within this limbo may be the most vulnerable in the next nine months.
“My general sense is that the big chain restaurants have long since committed themselves to this kind of disclosure,” Hibbert said.
He pointed out that the FDA’s delay — which has caused the purgatory for newly qualified eateries within New York City — was announced only days before the rules were expected to take effect this spring.
Larger chains were likely already prepared to roll out new signage if they had not begun to already.
“Any large chain — the McDonald’s and KFCs of this world — had it in place a long time ago,” Hibbert said. “It’s really the people on the borderline,” who will be most affected.
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