Requires chain restaurants to post caloric content values

Under new PHL § 1352-e(1), chain restaurants and food establishments will be required to post the number of calories per menu item adjacent to such menu items on menu boards, menus and on food item tags. Such information shall be listed clearly and conspicuously, adjacent to or in close proximity to the applicable menu or food item so that it is clearly associated with such item, and in a font and format that is at least as prominent, in size and appearance, as that used to post either the name or price of the menu item. The range of calorie content values showing the minimum to maximum numbers of all calories for all flavors or varieties or combinations of food items shall be posted. Combinations having only one value shall list that total. The Commissioner shall develop regulations for the posting of calorie content information per serving for menu items that are clearly not intended for serving more than one individual and for alcoholic beverages.

New PHL § 1352-e(1) further provides that calorie values at drive-through windows shall be displayed on either the drive-through menu board, or on an adjacent stanchion visible at or prior to the point of ordering, so long as the calorie content values are as clearly and conspicuously posted on the stanchion adjacent to their menu item names, the same as the drive through menu board. The Commissioner shall develop regulations to provide a temporary waiver of these requirements for a chain restaurant or food service establishment that is in the process of seeking approval from a city, town or village for construction of such stanchions.

New PHL § 1352-e(1) states that the section does not apply to menu items listed for less than 30 days in one calendar year. Further, the bill states that nothing in new PHL § 1352-d prohibits the provision of additional nutrition information or a disclaimer about minor variations in calorie levels because of ingredients, serving sizes and customer preferences.

New PHL § 1352-e(2) defines a chain restaurant or food service establishment as an establishment engaged in the preparation, serving and sale of food or beverages or meals with standardized preparations, portion sizes and content intended for individual portion service. The establishment would be one of at least 15 such restaurants or establishments doing business nationally and operating under common ownership or control, or as franchises or under. the same trade name and offering predominately the same items on the same menus or menu boards or with the same food item tags. These requirements shall not apply to food establishments that are licensed under Agriculture and Markets Law Article 20-C, except for sections within those establishments that have been determined by the Commissioner to be chain restaurants or food service establishment.

New PHL § 1352-e(3) provides a chain restaurant or food service establishment violates the section by failing to post calorie values or obtain calorie analyses or documentation, or by knowingly or recklessly listing wrong calorie information. Health inspectors are not required to verify accuracy, but the Commissioner can request documentation of accuracy.

New PHL § 1352-e(4) provides that the Commissioner shall establish regulations for calorie analysis using databases, laboratory testing or other acceptable methods, and for recordkeeping.

New PHL § 1352-e(4) provides that violations of the section shall be limited to the penalties set forth in PHL § 12. The subdivision also preempts the authority of any county, city, town or village to adopt and enforce additional local laws, ordinances or regulations that are more stringent than the standards set forth in the bill and the rules and regulations promulgated pursuant thereto and that require nutrition information posting on menus, menu boards or food item tags.

Section 2 of the bill provides that the bill takes effect one year after enactment.

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 § 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 State Sanitary Code.

Justification

Obesity rates in adults have doubled over the last 20 years. The percentage of seriously overweight children has tripled, in the past two decades. The New York City Department of Health and Mental Hygiene found that nearly half of elementary-aged children are overweight. The federal Centers for Disease Control (CDC) has estimated that one in three children born in the United States in 2000 will become diabetic during their lifetime because of obesity. CDC found that $75 billion is spent nationally each year on obesity related medical costs, half of it public dollars through Medicaid and Medicare. In addition, it has been estimated that billions of New York's Medicaid spending is due to obesity each year.

While obesity has been rising Americans are increasingly eating meals away from home and food businesses spend hundreds of millions of dollars encouraging children and their families to do it even more. In 1970, Americans spent just 26 percent of their food dollars on foods prepared outside their homes but today spend almost half of food dollars eating out. The average American consumes about one-third of their calories from foods from restaurants and other food-service establishments. Portion sizes have been increasing and studies show that people tend to eat greater quantities of food when they are served more. It is not uncommon for a restaurant entree to provide half of a day's recommended calories. Children eat almost twice as many calories when they eat out compared to home.

Since 1994, consumers get nutrition labeling on packaged foods. However, they are now getting more of their food from restaurants and other food service establishments and they cannot tell that a sweetened coffee drink at one chain may have as many calories as a cheeseburger with fries at another. Food industry critics of government efforts to fight the obesity problem claim that it is up to parents to choose healthier foods to eat. Restaurant calorie information could empower parents - and children - to do a better job. Studies have found that 90 percent of consumers underestimate the calorie level of menu items and when calorie information is present, consumers choose lower calorie items one-third of the time. Over 80 percent of New York State residents say they would support a bill similar to what was passed in New York City to require those chains and fast food establishments to show the calorie for their offerings.

This proposal would not place an undue burden on business. It only applies to menu items that are offered in standardized sizes and content, and one-day specials or special orders by customers would not have to be analyzed and posted. This proposal does not mandate what restaurants offer or how they cook it.

Budgetary implications

Because enforcement of the bill's provisions will occur as part of regular inspections of restaurants and other food establishments, the bill is not expected to have a fiscal impact on the State or localities.

Effective date

This bill takes effect one year after enactment, and the Commissioner of Health may promulgate any necessary regulations prior to that date.