New York City Being Sued for Enforcing Menu Calorie Counts

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Oddly enough, the FDA will institute similar regulations nationwide next year.

New York City has long been ahead of the game when it’s come to requiring calorie count information on menus. In fact, many of the rules that the Food and Drug Administration is planning to enact for restaurants nationwide, as mandated by the Affordable Care Act, are similar to those that first popped up in cities like New York. However, despite finalizing those guidelines back in 2014, the FDA has continued to kick the compliance can down the road – a plan that’s not expected to be expedited now that the Trump administration, intent on repealling the ACA, is in charge. In the meantime, NYC decided, hey, let’s just keep rolling with these new regulations – but a new lawsuit argues, ironically enough, that now that federal regulations are on the books, New York’s ability to pass new rules isn’t lawful.

This past Friday, a number of major food industry groups – including the Food Marketing Institute, the National Restaurant Association, the National Association of Convenience Stores and the New York Association of Convenience Stores – filed a lawsuit in US District Court for the Southern District of New York claiming that the impending federal calorie count regulations, now set for May 2018 at the earliest, supersede similar local codes that New York is seeking to start enforcing next month. “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, FMI chief public policy officer, said in a statement according to Nation’s Restaurant News.

Though New York City has required chain restaurants to post calories since 2008, years before the new ACA law, at odds in the lawsuit is the city’s decision to start requiring chain food retailers selling prepared foods, including convenience stores, to post calorie counts. This provision will, in theory, eventually be enacted as part of the ACA regulations. However, after the FDA decided to delay its compliance date, New York decided to move forward with enforcing its version of the rule next month as scheduled. In fact, the city even acknowledged this in a press release earlier this year: “Earlier this month, the federal government announced it would delay enforcement of these rules for a year,” the statement from City Hall said, “and the City has decided to enforce its updated calorie labeling rules as planned.”

It's certainly an odd defense to cite the federal government’s unwillingness to finish enacting a law as an excuse to try to keep New York from enacting a similar law. In fact, Angelo Amador, executive director at the NRA’s Restaurant Law Association, was quoted as saying: “Federal preemption for menu labeling is the law of the land.” But is it? Those laws haven’t officially been implemented yet. Needless to say, it’ll be interesting to see how this one plays out in court.

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