STATE OF NEW YORK ________________________________________________________________________ 3795 2019-2020 Regular Sessions IN SENATE February 14, 2019 ___________ Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to create the menu nutritional disclosure act of 2019 The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "menu 2 nutritional disclosure act of 2019". 3 § 2. 1. For purposes of this act, the following definitions shall 4 apply: 5 (a) "Food facility" means a food facility in the state that operates 6 under common ownership or control with at least 9 other food facilities 7 with the same name in the state that offer for sale substantially the 8 same menu items, or operates as a franchised outlet of a parent company 9 with at least 9 other franchised outlets with the same name in the state 10 that offer for sale substantially the same menu items, except that a 11 "food facility" does not include the following: 12 (i) Certified farmer's markets. 13 (ii) Commissaries. 14 (iii) Licensed health care facilities. 15 (iv) Mobile support units. 16 (v) Restricted food service facilities. 17 (vi) Retail stores in which a majority of sales are from a pharmacy. 18 (vii) Vending machines. 19 (b) "Calorie content information" means the total number of calories 20 per standard menu item, as that item is usually prepared and offered for 21 sale. 22 (c) "Drive-through" means an area where a customer may provide an 23 order for and receive standard menu items while occupying a motor vehi- 24 cle. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08567-01-9

S. 3795 2 1 (d) "Menu board" means a posted list or pictorial display of food or 2 beverage items offered for sale by a food facility. "Menu board" does 3 not include printed or pictorial materials for the purpose of marketing. 4 (e) "Menu" means a printed list or pictorial display of food or bever- 5 age items offered for sale by a food facility. "Menu" shall not include 6 printed or pictorial materials for the purpose of marketing. 7 (f) "Food item tag" means a label or placard that identifies any food 8 item displayed for sale at a food facility. "Food item tag" shall not 9 include printed or pictorial materials for the purpose of marketing. 10 (g) "Nutritional information" includes, but is not limited to, all of 11 the following, per standard menu item, as that item is usually prepared 12 and offered for sale: 13 (i) Total number of calories. 14 (ii) Total number of grams of carbohydrates. 15 (iii) Total number of grams of saturated fat. 16 (iv) Total number of milligrams of sodium. 17 (h) "Point of sale" means the location where a customer makes an 18 order. 19 (i) "Standard menu item" means a food or beverage item offered for 20 sale by a food facility through a menu, menu board, or food item tag at 21 least 180 days per calendar year, except that "standard menu item" does 22 not include any of the following: 23 (i) A food item that is customized on a case-by-case basis in response 24 to an unsolicited customer request. 25 (ii) An alcoholic beverage, the labeling of which is not regulated by 26 the federal food and drug administration. 27 (iii) A packaged food otherwise subject to the nutrition labeling 28 requirements of the federal Nutrition Labeling and Education Act of 29 1990. 30 (iv) A food item when served at a consumer self-service salad bar. 31 (v) A food or beverage item when served at a consumer self-service 32 buffet. 33 (vi) Condiments. 34 (vii) Other items placed on counters or tables for use without charge 35 to consumers. 36 (j) "Reasonable basis" means any reasonable means recognized by the 37 federal food and drug administration of determining nutritional informa- 38 tion, as well as calorie content information, for a standard menu item, 39 as usually prepared and offered for sale, including, but not limited to, 40 nutrient databases and laboratory analyses. 41 (k) "Appetizer" means a food item that is generally served prior to a 42 food item that is generally regarded as the primary food item in a meal. 43 An "appetizer" includes a first course, starter, or small plate. 44 (l) "Dessert" means a food item that is generally served after a food 45 item that is generally regarded as the primary food item in a meal. 46 "Dessert" includes, but is not limited to, cakes, pastries, pies, ice 47 cream and food items that contain ice cream, confections, and other 48 sweets. 49 2. (a) Commencing July 1, 2021 and remaining in effect until December 50 31, 2022, inclusive, every food facility shall disclose nutritional 51 information as required by paragraph (b) of this subdivision or comply 52 with the requirements of subdivision 3 of this section during this time. 53 (b) (i) In order to comply with paragraph (a) of this subdivision, a 54 food facility that does not provide sit-down service shall disclose the 55 information in a clear and conspicuous manner on a brochure that is made 56 available at the point of sale prior to or during the placement of an

S. 3795 3 1 order. A food facility that provides sit-down service shall provide the 2 nutritional information in a clear and conspicuous size and typeface on 3 at least one of the following: 4 (1) A brochure available on the table. 5 (2) A menu next to each standard menu item. 6 (3) A menu, under an index section that is separate from the listing 7 of standard menu items. 8 (4) A menu insert. 9 (5) A table tent on the table. 10 (ii) Notwithstanding subparagraph (i) of this paragraph, a food facil- 11 ity that has a drive-through area and uses a menu board to display or 12 list standard menu items at the point of sale shall, for purposes of the 13 drive-through area only, disclose the nutritional information in a clear 14 and conspicuous manner on a brochure or other printed material that is 15 available upon request, and shall conspicuously display a notice at the 16 point of sale that reads: "NUTRITIONAL INFORMATION IS AVAILABLE UPON 17 REQUEST" or other similar statement that indicates the disclosure of 18 nutritional information is available upon request. 19 3. (a) On and after January 1, 2023, every food facility that provides 20 a menu shall disclose calorie content information for a standard menu 21 item next to the item on the menu in a size and typeface that is clear 22 and conspicuous. 23 (b) On and after January 1, 2023, every food facility that uses an 24 indoor menu board shall disclose calorie content information for a stan- 25 dard menu item next to the item on the menu board in a size and typeface 26 that is clear and conspicuous. 27 (c) On and after January 1, 2023, every food facility that uses a food 28 item tag as an alternative to a menu or menu board to describe a stand- 29 ard menu item that is displayed for sale in a display case within the 30 food facility shall disclose calorie content information for that stand- 31 ard menu item on the food item tag for that item in a size and typeface 32 that is clear and conspicuous. 33 (d) On and after January 1, 2023, every food facility that has a 34 drive-through area and uses a menu board to display or list standard 35 menu items at the point of sale shall, for purposes of the drive-through 36 area only, disclose the nutritional information for each standard menu 37 item in a clear and conspicuous manner on a brochure or other printed 38 material that is available upon request, and shall clearly and conspicu- 39 ously display a notice at the point of sale that reads: "NUTRITIONAL 40 INFORMATION IS AVAILABLE UPON REQUEST" or other similar statement that 41 indicates the disclosure of nutritional information is available upon 42 request. If a food facility subject to this paragraph discloses nutri- 43 tional information in the manner described in paragraph (b) of this 44 subdivision, the food facility shall be deemed to be in compliance with 45 this paragraph. 46 4. For purposes of subdivision 3 of this section, the disclosure of 47 calorie content information on a menu or menu board next to a standard 48 menu item that is a combination of at least two standard menu items on 49 the menu or menu board, shall, based upon all possible combinations for 50 that standard menu item, include both the minimum amount of calories for 51 the calorie count information and the maximum amount of calories for the 52 calorie count information. If there is only one possible total amount of 53 calories, then this total shall be disclosed. 54 5. For purposes of subdivision 3 of this section, the disclosure of 55 calorie content information on a menu or menu board next to a standard

S. 3795 4 1 menu item that is not an appetizer or dessert, but is intended to serve 2 more than one individual, shall include both of the following: 3 (a) The number of individuals intended to be served by the standard 4 menu item. 5 (b) The calorie content information per individual serving. If the 6 standard menu item is a combination of at least two standard menu items, 7 this disclosure shall, based upon all possible combinations for that 8 standard menu item, include both the minimum amount of calories for the 9 calorie count information and the maximum amount of calories. If there 10 is only one possible total amount of calories, then this total shall be 11 disclosed. 12 6. For beverage items, a range of calorie count information may be 13 provided, which includes both the minimum amount of calories for any 14 beverage item and the maximum amount of calories. 15 7. The nutritional information and calorie content information 16 required by this act shall be determined on a reasonable basis. A 17 reasonable basis determination of nutritional information and calorie 18 content information shall be required only once per standard menu item, 19 provided that portion size is reasonably consistent and the food facili- 20 ty follows a standardized recipe and trains to a consistent method of 21 preparation. 22 8. Menus and menu boards may include a disclaimer that indicates that 23 there may be variations in nutritional content across servings, based on 24 variations in overall size and quantities of ingredients, and based on 25 special ordering. 26 9. This act shall not be construed to create or enhance any claim, 27 right of action, or civil liability that did not previously exist under 28 state law or limit any claim, right of action, or civil liability that 29 otherwise exists under state law. No private right of action shall arise 30 out of this act. The only enforcement mechanism of this act shall be the 31 local enforcement agency. 32 10. This act shall not be construed to preclude any food facility from 33 voluntarily providing nutritional information in addition to the 34 requirements of this act. 35 11. To the extent consistent with federal law, this act, as well as 36 any other state law that regulates the disclosure of nutritional infor- 37 mation, is a matter of statewide concern and occupies the whole field of 38 regulation regarding the disclosure of nutritional information by a food 39 facility as well as content required to be posted on menus, menu boards 40 and food item tags. No ordinance or regulation of a local government 41 shall regulate the dissemination of nutritional information or the 42 content required to be placed on menus, menu boards or food item tags by 43 a food facility. Any ordinance or regulation that violates this prohibi- 44 tion is void and shall have no force or effect. 45 12. Commencing July 1, 2021, a food facility that violates this act is 46 guilty of an infraction, punishable by a fine of not less than fifty 47 dollars or more than five hundred dollars, which may be assessed by a 48 local enforcement agency. However, a food facility may not be found to 49 violate this act more than once during an inspection visit. Notwith- 50 standing the penal law or any other provision of law to the contrary, a 51 violation of this act shall not constitute a misdemeanor. 52 13. Within 180 days after the effective date of this act, the New York 53 state department of health shall promulgate regulations defining the 54 specific requirements that constitute substantial compliance with this 55 act by food facilities.

S. 3795 5 1 14. If any provision of this act or the application thereof is for any 2 reason held invalid, ineffective, or unconstitutional by a court of 3 competent jurisdiction, the remainder of this act shall not be affected 4 thereby, and to this end, the provisions of this act are severable. 5 § 3. This act shall take effect immediately.

Creates the menu nutritional disclosure act of 2019

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