DreamPictures

The city attempted to preempt the FDA's nationwide mandate for chain restaurants and food retailers to post calorie counts.

Mike Pomranz
August 28, 2017

New York City has agreed not to move forward with its plan to begin enforcing federal guidelines requiring restaurant chains and retail food outlets to post calorie counts on menus ahead of the government's May 2018 enforcement date. The city's decision comes after being faced with a lawsuit from the food industry that was also backed by the U.S. Food and Drug Administration. Ironically enough, New York, which has required some restaurants to post calorie counts on menus for about a decade, served as a model for the forthcoming new regulations, which were passed as part of the Affordable Care Act. However, now that a federal law is on the books, the FDA says that the city no longer has the power to continue pushing its own agenda on these rules—even if they haven't been implemented.

The new FDA rules were originally set to start in May of this year, but as it has done multiples times since the guidelines were finalized in 2014, due to requests from the restaurant and retail food industry, the agency pushed back the compliance deadline an additional year. Apparently fed up with the continued delays, and with a newfound worry that, under the Trump administration, the FDA may never enact these ACA rules at all, New York announced that it would begin enforcing the rules on its own. That decision led to a lawsuit in federal court. "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," Jennifer Hatcher, chief public policy officer for Food Marketing Institute, one of the plaintiffs, said at the time.

FMI reinforced this stance after news of New York's agreement to back down. "Food Marketing Institute is pleased we were able to reach a settlement with the City, which both protects our members from fines prior to the federal compliance date and also serves as a strong deterrent for other states and localities from prematurely enforcing the federal menu labeling rule prior to the federal compliance date," Hatcher said in a statement this time around.

But a larger question looms: What if the compliance date gets pushed back again? Has the government found a loophole to indefinitely prevent places like New York to require calorie counts? For its part, the FDA says enacting these rules is still its plan. "I am pleased to announce that we will provide additional, practical guidance on the menu labeling requirements by the end of this year," FDA Commissioner Scott Gottlieb said in a statement timed with the New York City agreement, but not directly mentioning it. "These new policy steps should allow covered establishments to implement the requirements by next year's compliance date."