Relates to the posting of calorie content of food sold by retail food establishments and retail food service operations

Section 2 of the bill amends Public Health Law (PHL) § 1351 to provide that places engaged in the preparation, sale or service of food for and to the general public must permit inspectors access to their facilities for the purpose of ascertaining whether the provisions of new PHL § 1357 are being observed.

Section 3 of the bill adds a new Public Health Law (PHL) § 1357 to require calorie posting in every "retail food establishment," defined as any food service establishment or mobile food establishment, as those terms are used by the State Sanitary Code (SSC), which prepares and serves food at the retail level and is one of a group of 15 or more retail food establishments doing business nationally that: (1) offer substantially the same menu items; and (2) are franchises of the same parent business, operate under common ownership or control, or do business under the same name.

Section 3 further provides that for each item or combination of items offered on an establishment's menu, the "calorie content value" must be listed on the menu or menu board, adjacent to or in close proximity to the applicable item on the menu or menu board and in a font, format and size of equal prominence to the price or name of the item, However, the bill does not apply to temporary menu items that appear on the menu for less than 30 days in one calendar year, and does not apply to condiments or similar items offered free of charge. For drive-through windows, calorie content values must be posted either on the menu board used by customers for placing orders or on a stanchion adjacent to such menu board.

Section 3 of the bill also provides that for menu items that come in different flavors, varieties or combinations, the range of calorie content values showing the minimum to maximum numbers of calories for all such flavors, varieties and combinations must be posted. If an item is displayed with a food item tag, which is a tag, label or placard placed in close proximity to an item, the food item tag must list the item's calorie content value in a font, format and size of equal prominence to the name of the item.

Section 3 of the bill additionally provides that calorie content values are to be based on a verifiable analysis of a food or menu item, which may include the use of nutrient databases or laboratory testing. Documentation establishing the results of such analyses must be maintained for as long as the item is offered for sale and for such additional time as may be required by the Department of Health (DOH). For alcoholic beverages, a retail food establishment may list an average calorie content value per standard service for each type of

alcoholic beverage pursuant to regulations that will be promulgated by DOH.

Section 3 of the bill further provides that retail food establishments are not precluded from providing nutrition information in addition to that required by the bill. Section 3 of the bill also provides that a retail food establishment violates the new PHL § 1357 if it: (1) fails to post calorie content values as required; (2) fails to obtain calorie content value analyses and maintain documentation of such analyses as required; or (3) knowingly or recklessly lists on menus, menu boards or food item tags calorie content values that are materially incorrect or misleading. Moreover, the bill permits localities that meet its minimum requirements to impose additional, more restrictive requirements.

Section 4 of the bill adds a new Agriculture and Markets Law (AML) §500(7) to require calorie posting in every "retail food service operation," meaning an area of a retail food store, as defined by AML.

§ 500(1)(b), which prepares and serves ready-to-eat food at the retail level, whether consumption occurs on or off the premises, and is within a group of 15 or more retail food stores that that do business nationally. The stores within the group must be franchises of the same parent business, operate under common ownership or control or do business under the same name, and their retail food service operations must all offer substantially the same menu items.

Section 4 further provides that for each item or combination of items offered on a retail food service operation's menu, the "calorie content value" must be listed on the menu or menu board, adjacent to or in close proximity to the applicable item on the menu or menu board and in a font, format and size of equal prominence to the price or name of the item. However, the bill does not apply to temporary menu items that appear on the menu for less than 30 days in one calendar year, and does not apply to condiments or similar items offered free of charge.

Section 4 of the bill also provides that for menu items that come in different flavors, varieties or combinations, the range of calorie content values showing the minimum to maximum numbers of calories for all such flavors, varieties and combinations must be posted. If an item is displayed with a food item tag, which is a tag, label or placard placed in close proximity to an item, the food item tag must list the item's calorie content value in a font, format and size of equal prominence to the name of the item.

Section 4 of the bill additionally provides that calorie content values are to be based on a verifiable analysis of a food or menu item, which may include the use of nutrient databases or laboratory testing. Documentation establishing the results of such analyses must be maintained for as long as the item is offered for sale and for such additional time as may be required by the Agriculture and Markets Department (A&M).

Section 4 of the bill further provides that retail food establishments are not precluded from providing nutrition information in addition to that required by the bill. Section 4 additionally provides that a retail food service operation violates the new AML § 500(7) if it: (1) fails to post calorie content values as required; (2) fails to obtain calorie content value analyses and maintain documentation of such analyses as required; or (3) knowingly or recklessly lists on menus, menu boards or food item tags calorie content values that are materially incorrect or misleading. Moreover, the bill permits localities to impose additional, more restrictive requirements.

Section 5 of the bill provides that the bill would take effect September 1, 2010, except that the Commissioner of Health and the Commissioner of Agriculture and Markets may promulgate regulations, on an emergency basis if necessary, prior to that date.

Existing law

PHL § 12 provides for monetary penalties for violations of the PHL or any regulation promulgated thereunder, if no specific penalty is otherwise provided, in an amount of up to $2,000 per violation or in higher amounts in certain egregious situations.

PHL § 206(4) authorizes a penalty of up to $2,000 for a violation of the PHL or any regulation promulgated thereunder.

PHL § 309(1)(f) authorizes local boards of health to impose penalties for violations of the SSC.

PHL § 1350 authorizes the Commissioner of Health to inspect and supervise all public places in New York in which food is prepared, sold or served, although the Commissioner may designate persons to conduct such inspections.

PHL § 1351 requires persons in charge of any place engaged in the preparation, sale or service of food for and to the general public to permit inspectors access to their facilities for the purpose of ascertaining compliance with PHL §§ 1350 through 1353 and the SSC.

Part 14, Chapter I of the SSC, which appears at Title 10 of the New York Codes, Rules and Regulations (NYCRR), governs food service establishments and mobile food service establishments.

10 NYCRR § 14-1.20(a) defines a "food service establishment" as a place where food is prepared and intended for individual portion service, including the site at which the individual portions are provided, whether consumption. occurs on or off the premises. The definition does not include food processing establishments, retail food stores, private homes, and food service operations where a distinct group - such as a congregation, club or fraternal organization mutually provides, prepares, serves and consumes the food.

10 NYCRR § 14-1.190 provides that a permit must be issued by the appropriate local health official before a food service establishment can be operated.

10 NYCRR § 14-1.30 defines "food" as any edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption.

10 NYCRR § 14-4.30(a) defines a "mobile food service establishment" as a self-contained food service operation, located in a vehicle or a movable stand, self or otherwise propelled, used to store, prepare, display or serve food intended for individual portion service.

14 NYCRR § 14-4.194 provides that a permit must be obtained before a mobile food service establishment can be operated.

AML § 20 authorizes A&M to inspect all places of business used in the manufacture, storage or sale of any article or product over which the AML gives A&M authority.

AML § 39 provides that violations of the AML are subject to a penalty, if no specific penalty is otherwise provided, of up to $300 for the first violation and up to $600 for a second violation and each subsequent violation. AML § 40 provides that the violation of a Commissioner's order or a departmental regulation by a person, association or corporation, or the agent, officer or employee thereof, is subject to a penalty of up to $200 for a first offense and a penalty of up to $400 for a second violation and each subsequent violation.

AML § 198(1) defines "food" and "food product" as including all articles of food, drink, confectionery or condiment, whether simple, mixed or compound, used or intended for use by humans or animals, and including all substances or ingredients to be added to food for any purpose.

AML § 500(1) defines a "food service establishment" as a place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided, whether consumption occurs on or off the premises, or whether or not there is a charge for the food.

AML § 500(2) defines a "retail food store" as an establishment or section of an establishment where food and food products are offered to the consumer and intended for off premises consumption, not including establishments which handle only pre-packaged, non potentially hazardous foods, roadside markets that offer only fresh fruits and fresh vegetables for sale, food service establishments, or food and beverage vending machines.

AML § 500(4) requires A&M to inspect each retail food store at least once in every 12 month period.

AML § 500(5) requires licensure of facilities operated as food service establishments or retail food stores, unless such facilities are otherwise under the jurisdiction of DOH or the United States Department of Agriculture.

Justification

Increased caloric intake is a key factor contributing to the alarming increase in obesity in the United States. According to the United States Centers for Disease Control and Prevention, two-thirds of American adults are overweight or obese, and the rates of obesity have tripled in children and teens since 1980. Obesity increases the risk of diabetes, heart disease, stroke, and other health problems. In addition, according to the Comptroller, medical expenses associated with adult obesity costs New York State an estimated $6.1 billion a year.

American adults and children consume, on average, one-third of their calories from eating out. The average American eats out four meals a week, and dining out has been linked to higher calorie consumption and obesity. Children eat almost twice as many calories when eating in restaurants compared to eating at home. Evidence shows that most people find it difficult to guess the calorie counts of typical restaurant meals and routinely underestimate such amounts. One study showed that less than 15 percent of New Yorkers could guess the lowest or highest calorie menu items at any chain restaurant in the survey. Moreover, voluntary industry disclosure practices, such as posting nutritional information online, on tray liners, or in brochures, is inadequate; a study of New York City consumers showed that 95% of diners do not see nutrition information provided in this way.

On the other hand, studies also show that consumers who see calorie content values prior to ordering choose meals with fewer calories than patrons who do not see calorie information. Significantly, one study showed that in New York City, which has already implemented a calorie posting requirement, fast food customers who saw calorie information displayed purchased food with an average of 52 fewer calories than customers who did not see the information. A study conducted in California, which has also enacted menu labeling legislation, estimates that if 80 percent of adult customers at fast food restaurant reduce their caloric intake based on posted calorie information, they could each avoid an average of more than two pounds of weight gain per year. In addition, the New York City initiative is expected to prevent at least 30,000 new cases of diabetes over the next five years.

This bill requires large commercial chains of restaurants, mobile vendors, supermarkets and convenience stores which offer standardized menus for dining on or off the premises to list the calorie content values of their menu items on their menus and menu boards, including menu boards used by consumers for purposes of ordering food from their cars at drive-through windows. This will provide consumers will access to such information at the point of purchase, allowing them to make informed choices and avoid confusion about what they consume. It is expected that this will lead consumers to make more healthful choices and reduce the prevalence of obesity, the incidence of obesity~related illness and the associated public health costs.

Legislative history

New bill.

Fiscal implications

Because enforcement of the bill's provisions will occur as part of regular inspections already conducted by DOH, city and county health departments and A&M, the bill is not expected to have a fiscal impact on the State or localities.

Effective date

This bill would take effect September 1, 2010, except that the Commissioner of Health and the Commissioner of Agriculture and Markets may promulgate regulations, on an emergency basis if necessary, prior to that date.