Restaurants, Convenience Stores Fight NYC Menu Labeling
Source: Law360
By Joyce Hanson
July 14, 2017
Several restaurant and convenience-store trade groups filed a lawsuit in New York federal court on Friday against the city’s health and consumer affairs departments, challenging their enforcement of menu-labeling standards as premature and preempted by federal law.
The Food Marketing Institute, the National Association of Convenience Stores, the New York Association of Convenience Stores and the Restaurant Law Center filed their complaint to stop New York City’s Department of Health and Mental Hygiene and Department of Consumer Affairs from enforcing a regulation that requires the posting of calorie and nutrient information earlier than a May 2018 compliance date established by the U.S. Food and Drug Administration.
“Plaintiffs, a group of trade associations representing grocers, convenience stores and other food retailers injured by New York’s unlawful implementation of its menu labeling regulations, seek preliminary and permanent injunctive relief to prevent New York City from enforcing its regulation as to businesses subject to the federal standard, at least until such time as FDA requires compliance with the federal standard,” the complaint said.
In 2008, New York City was one of the first U.S. jurisdictions to require calorie labeling in chain restaurants, according to the city. Many cities, counties and states followed suit, and in 2010 calorie-labeling requirements became a part of the Affordable Care Act, the city said. NYC also has waged war on sodium; a New York appeals court on Feb. 10 affirmed a trial court’s rejection of the National Restaurant Association’s challenge to a controversial rule requiring chain restaurants in the city to alert customers to high-sodium food they serve.
In May, the FDA announced that it is postponing enforcement of nationwide menu-labeling rules by a year, to May 7, 2018, to respond to industry concerns regarding implementation and to consider amendments to alleviate the costs of the rule. In addition, the FDA published rules in 2014 requiring calorie disclosures on menus but has decided to delay them.
Meanwhile, according to the restaurant groups’ complaint, New York City has announced that it will begin fining food service establishments on Aug. 21 for failure to comply with Regulation 81.50, which requires that calorie and related nutritional information be posted on menu boards and menus in restaurants, convenience stores, supermarkets and similar businesses.
The groups say federal law prohibits any state or locality from imposing any food labeling regulation that is not identical to corresponding labeling requirements established by Congress and the FDA. Regulation 81.50 isn’t identical to the corresponding FDA regulations in that it is effective immediately, the complaint says.
The complaint cites federal preemption as its cause of action and seeks preliminary and permanent injunctions against enforcement of Regulation 81.50
“Federal preemption for menu labeling is the law of the land,” Angelo Amador, executive director of the Restaurant Law Center, said in a statement. “New York City is overstepping its legal authority in its attempt to enforce menu labeling ahead of the federal compliance date of May 7, 2018. We expect our preliminary injunction request will be granted to this clear violation of federal law.”
A spokesman for New York City told Law360 on Friday that the health and consumer affairs departments began enforcing the updated calorie labeling rule on May 22 by educating businesses during regular inspections. In addition, he said, the departments gave chain restaurants and retail establishments a compliance guide and a dedicated email address for all inquiries related to the regulation.
“The health department has been at the vanguard of calorie labeling since 2008 when the city’s Board of Health first enacted these rules for chain restaurants,” the department said in a statement. “This information allows New Yorkers to make good food choices for themselves. We are confident that our updated calorie labeling rules announced this past May will withstand scrutiny. It’s just good, common-sense policy that benefits all New Yorkers.”
The restaurant and convenience store groups are represented by Charles A. Michael, Shannen W. Coffin and Osvaldo Vazquez of Steptoe & Johnson LLP and Angelo I. Amador of the Restaurant Law Center.
Legal counsel information for New York City was not immediately available.
The case is National Association of Convenience Stores et al. v. New York City Department of Health and Mental Hygiene et al., case number 1:17-cv-05324, in the U.S. District Court for the Southern District of New York.