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Department of Health and Mental Hygiene
Codified Title: 
Title 24: Department of Health and Mental Hygiene

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

 

Statutory Authority 

            These amendments to the New York City Health Code (the Health Code) are promulgated pursuant to §§558 and 1043 of the New York City Charter (the Charter).  Sections 558(b) and (c) of the Charter empower the Board of Health (the Board) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (the Department) extends.  Section 556 of the Charter authorizes the Department to supervise and regulate the City’s food supply.  Section 1043 grants the Department rule-making authority.  

Background 

The Commissioner of the Department of Health and Mental Hygiene is the “permit issuing official” designated in the State Sanitary Code (10 NYCRR Chapter 1) Subpart 14-1 to enforce provisions of the Sanitary Code applicable to the operation of food service establishments in the City of New York (the City).  In the City, food service establishments are also subject to provisions of the New York City Health Code and Chapter 23 of Title 24 of the Rules of the City of New York, and mobile food vendors are also subject to subchapter 2 of chapter 3 of title 17 of the New York City Administrative Code.  The Department’s Division of Environmental Health enforces the provisions of the Administrative, Sanitary and Health Codes and the Department’s rules applicable to such establishments.   

The Board of Health is amending Article 81 of the Health Code to update certain requirements to reflect changes in food science recommendations found in the 2013 US FDA Model Food Code (“2013 Food Code”) and to c­­­­­larify various provisions to help  establishment operators comply with the requirements.   

The following changes are being made: 

§81.03 Definitions. 

Amends the definition of sanitization in subdivision (ii) to add submersion in a quaternary ammonium solution as an approved method of chemically sanitizing tableware, utensils and equipment.  The method is included in the 2013 Food Code and will give operators another option for sanitization. 

§81.04 Approved sources of food.   

Amends subdivision (c) to add scallops sold with their roe (eggs) to the list of shellfish for which identification tags must be retained.  This section has been clarified since its proposal.  In accordance with the 2013 Food Code, tags are not required to be kept for shucked abductor muscle of the scallops. Tags are required solely when scallops are sold live in their shells or when they are shucked and still have their roe attached.

Subdivision (d) is being added to require that exotic game meats served in food service establishments be inspected and acquired from commercially regulated sources, such as those described in regulations of the State Department of Agriculture and Markets found at 1 NYCRR §271-2.2, and will be made consistent with the 2013 Food Code.

Subdivision (e) is being added to address the fact that many food service establishments are producing their own packaged juice products, and will require that juice produced in retail establishments (including food service establishments) bear warnings stating that the juice has not been produced in a manner that prevents, reduces or eliminates the presence of pathogens.  In response to a comment, paragraph (1) has been changed to add a definition of “packaged” to clarify when labels are required. A reference to Health Code §71.05(d) provisions on misbranding has also been added. 

§81.05 Permit requirements; technical review and pre-permitting inspections for food service establishments and non-retail food processing establishments.   

The name of this section is being amended to indicate that a permit is required to operate a food service establishment.  The first sentence of former subdivision (c), which stated that a permit is needed to operate a food service or non-retail food processing establishment, has been re-lettered as subdivision (a) and the entire section has been re-lettered accordingly.  Certain language in former subdivision (c), re-lettered here as subdivision (d), is being added to conform this provision with State Sanitary Code §14-1.190, and make clear that an establishment may not begin operating for 21-days after it applies for an initial permit, unless the Department has inspected it. This language was inadvertently omitted from the last revision of Article 81. 

§ 81.06 Prevention of imminent or public health hazards. 

Subdivision (c) is being amended to clarify that the Department’s approval of a food service establishment’s Hazard Analysis and Critical Control Point (HACCP) plan is not required when food is controlled according to the time and temperature requirements of §81.09. 

§81.07 Food; sanitary preparation, protection against contamination. 

Paragraph (2) of subdivision (a) is being deleted because it is duplicative of §81.17(d).

Subdivision (c) is being amended to prohibit establishments from keeping, as well as using, non-pasteurized liquid, frozen or dry eggs.

Subdivision (d) is being amended to delete the sentence that begins with the phrase “Food removed from original containers or packages…” which is unnecessary because subdivision (a) of this section already mandates that all food, regardless of packaging, be protected from contamination. 

Subdivision (h) is being amended to add an additional method of storing utensils that is recommended in the 2013 Food Code §4-602.11.  Establishments would be able to place them in water maintained at or above 135 degrees Fahrenheit.  This subdivision is also being amended to clarify that utensils used for dispensing ready to eat foods must have handles to prevent food contamination.  In response to comments, the provision has been clarified to require that handles be of sufficient length to avoid bare hand contact with ready to eat potentially hazardous food.

Subdivision (o), formerly entitled “Drinking straws,” is being retitled “Single service articles” and amended to require that these items, which include paper coffee cups and plastic cutlery, also be dispensed in ways that prevent possible contamination.  This rule change responds to a petition to the Board to commence rulemaking about preventing contamination of single service articles.

  Several other amendments are being made to this section to clarify its provisions. 

§81.09 Potentially hazardous (time and temperature control for safety) foods.

This section is being repealed and replaced with one that is better organized and specifies the temperatures required for various processes.

Temperatures for cooking meats are being updated in accordance with the 2013 Food Code recommendations.  The language in subdivision (a)(1) was corrected from the proposal, to add the words “cooked and refrigerated” to the term “cooked and refrigerated food,” from they were inadvertently omitted.    

Subdivision (b) is being amended to require freezing of fish to destroy parasites before serving such fish raw, raw-marinated (e.g. ceviche) or undercooked. Parasites (in the larval stage) consumed in uncooked or undercooked fish present a risk or food borne illness. Among parasites, nematodes or roundworms (Anisakis spp.), cestodes or tapeworms (Diphyllobothrium spp.) and trematodes or flukes are of most concern.  The FDA Food Code recommends that fish that is not going to be adequately cooked be frozen to destroy parasites before service because visual inspection techniques cannot adequately detect the presence of parasites.  The effectiveness of freezing fish to kill parasites depends on several factors, including the temperature at which and length of time the fish is frozen, as well as the type of parasite. Proposed requirements for recordkeeping have been deleted from this subdivision in response to comments. .

Paragraph 5 of subdivision (c) has been amended since the proposal to decrease the cooking temperature of mechanically tenderized and injected meats to 155 degrees Fahrenheit (68 degrees Celsius).     

§81.10 Time as a public health control; exception to required holding temperatures of potentially hazardous (temperature control for safety) foods. 

Several provisions of the section are being clarified, but remain substantively unchanged.

The section title is being amended to indicate that time can be used as a control as an alternative to maintaining the time and temperature requirements of §81.09.

Subdivision (b) is being amended to add the date as an element that must be noted on labels when food is being held out of temperature.  Additional amendments are being made to subdivisions (b) and (c) to clarify their provisions.

Paragraph (2) of subdivision (d) is being amended to clarify that, if food previously held under §81.10 is returned to temperature control, it is considered contaminated and in violation of §81.07.

Table 1 is being amended to reflect the changes made to this section. 

§81.11 Consumer advisory: serving raw or undercooked foods.  

This section is new.  Section 81.09 formerly required that an establishment tell consumers about the dangers of food borne illness when potentially hazardous/time and temperature control for safety foods are being served raw or undercooked.  The 2013 Food Code recommends a written advisory, which has been adopted and included in this new section, effective January 1, 2016.  Until that time, establishments may continue to verbally warn consumers of the risk posed by eating raw or undercooked foods. 

§81.12 Reduced oxygen packaging; cook chill and sous vide processing. 

The heading of subdivision (c) is being retitled to more accurately reflect its content. 

§81.13 Food workers; health; hygienic practices.  

This section is being amended to clarify the activities during which workers must wear hair coverings. Also, consistent with recent amendments to the Smoke-Free Air Act enacted by Local Law 152 of 2013, the use of electronic cigarettes will also be prohibited.  Provisions on the use of gloves have been moved from subdivision (d) of this section to §81.07(j). 

§81.17 General requirements: design, construction, materials and maintenance.  

Minor changes are being made to clarify some provisions and reorganize this section.  In addition, a new subdivision (g) is being added to include the provisions on handling toxic and hazardous substances that formerly appeared in §81.23.  Provisions governing single service articles are being deleted to reflect their inclusion in the new §81.07(o). 

§81.18 Cold and hot storage and holding facilities.  

An error in this section is being corrected to require that thermometers and other temperature measuring devices be calibrated to be accurate to (+) or (-) 2 degrees, rather than the former (+) or (-) 3 degrees. 

§81.20 Plumbing and water supply 

Subdivision (a) is being amended to add a requirement that an establishment have adequate supplies of potable water at all times.

Subdivisions (b) and (c) are being combined and the provisions related to condensation, clarified, and the remainder of the section re-lettered appropriately. 

§81.21 Hand wash sinks. 

Subdivision (a) is being amended to require that hand sinks be supplied with potable running water.

The former requirement in subdivision (b) that waste receptacles be foot operated and covered is being deleted.

§81.22 Employee and patron toilets. 

This section is being amended to clarify its provisions but remains substantively unchanged. 

§81.23 Integrated pest management. 

Subdivision (d) is being amended to clarify the provisions of paragraph (3) and add a new paragraph (4) prohibiting use of unprotected bait stations, consistent with State Sanitary Code §14-1.60(e).

Subdivision (e), relating to toxic materials, is being moved to §81.17. 

  

§81.24 Garbage and waste disposal. 

The former requirement that garbage and wastes be either removed from the food establishment daily or placed in a separate pest-proof room is being deleted.  Garbage and waste stored for removal now need to be kept in pest-proof containers but need not be in a pest proof room.  The provisions of this section are also being reorganized. 

§81.27 Cleaning of premises, equipment and utensils.   

This section is being amended to clarify its requirements. The cleaning of food contact surfaces is vital in preventing bacterial growth and contamination.  The amendments clarify that cleaning requirements apply to all food contact surfaces. 

§81.29 Dishwashing and ware washing.   

This section is being repealed and restated to clarify its provisions.  Provisions referring to sanitizing in accordance with manufacturers’ instructions for use of various chemical solutions and equipment are being deleted. This section now requires that when items are chemically sanitized, chemicals registered as anti-microbial pesticides with the US Environmental Protection Agency for food service be used.  

 §81.31 Outdoor cooking, food and beverage preparation facilities.  

  No substantive changes are being made to this section, but its provisions are being clarified to facilitate compliance.

§81.46 Refillable, returnable containers.  

This section is new.  It sets out procedures for establishments that allow consumers to re-use their own beverage containers or that provide food/beverage containers to consumers that may be refilled at the establishment, as an environmental conservation measure.  Re-using food containers exposes food workers and consumers to increased public health risks and food to potential contamination and this section establishes procedures to reduce those risks. These provisions are consistent with 2013 Food Code §3-304.17.  In response to comments, the provision has been revised to allow establishments that do not want to wash and sanitize containers returned by patrons to obtain Department approval for a written standard operating procedure that demonstrates that the procedures being used prevent contamination.  

§81.53 Maximum Beverage Size.

This section is being repealed.

The resolution is as follows.

“Shall” and “must” denote mandatory requirements and may be used interchangeably. 

New text is underlined; deleted material is in [brackets].

 

Effective Date: 
Sat, 08/08/2015

Proposed Rules: Closed to Comments (View Public Comments Received:1)

Agency:
Comment By: 
Tuesday, July 28, 2015
Proposed Rules Content: 

Statement of Basis and Purpose

 

Background

 

The Charter provides the Department of Health and Mental Hygiene (the “Department” or “DOHMH”) with broad jurisdiction to protect and promote the health of all New Yorkers. The control of communicable disease is a core public health function.  At its meeting on September 13, 2012, the Board of Health voted to amend Article 181 by adding a requirement that, prior to a circumcision involving direct oral suction (DOS) of infants less than 60 days of age, the person performing the circumcision obtain the written consent of a parent. In the consent, the parent acknowledges that he or she is aware that the Department recommends DOS, also known as metzitzah b’peh, not be performed because of the risk of brain damage and death.

 

 Circumcisions that include DOS involve direct contact between the mouth of the practitioner designated by the religious community to perform a circumcision, known as a mohel, and the infant’s circumcision wound.  The consent requirement has generated opposition in the Orthodox Jewish community by persons who practice DOS.  This opposition has made it difficult to enforce the consent requirement. Since the provision went into effect, there have been six cases of herpes simplex-1 (HSV-1) infection reported in infants following DOS in New York City, including four in 2014.  In two of these six cases, the mohel who was associated with the case was identified in the course of the Department’s case investigation.  A signed consent form was provided by the mohel in only one of the two cases where the mohel was identified. There have also been reports in news media of mohels who overtly ignored the signed consent reform requirement and pledge to continue to do so.

 

The consent requirement was passed with the goal of educating parents about the risks associated with the practice of DOS.  The opposition that the rule has generated has impeded and frustrated the Department’s goal of educating parents about the risks associated with DOS.  The Department hopes that it can educate more parents about DOS by distributing materials in certain hospitals and pediatric and OB/GYN practices.  This educational initiative will be more effective if the Department can restore a strong relationship with this community.  Repealing the consent requirement will serve as an important step in restoring this relationship.  Accordingly, the Department is asking the Board to repeal section 181.21 of the Health Code.   

 

Statutory Authority

 

These proposed amendments to the Health Code are promulgated pursuant to §558 and §1043 of the Charter.  Sections 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the Health Code all matters to which the authority of the Department extends.  Section 556 of the Charter provides the Department with broad jurisdiction over all matters affecting health in the City.  Section 1043 grants the Department rule-making authority.  The amendment is also proposed pursuant to the Department’s historic power to supervise the control of communicable disease in New York City.

 

Subject: 

Proposal to amend Article 181 of the New York City Health Code by repealing §181.21.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101-4123
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments (View Public Comments Received:2)

Agency:
Comment By: 
Wednesday, July 29, 2015
Proposed Rules Content: 

Statement of Basis and Purpose

 

Statutory Authority

Section 558 of the New York City Charter (“the Charter”) authorizes the Board of Health (“the Board”) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (“the Department”) extends.  Section 556 of the Charter gives the Department jurisdiction to regulate all matters affecting health in the City of New York (“the City” or “NYC”) and makes the Department responsible for controlling disease and regulating the City’s food supply.

 

The regulation of food service establishments (“FSEs”), a category that includes both quick-service and sit-down restaurants, is a core public health function. The Department issues permits to and inspects FSEs in New York City to ensure safe and healthy dining options.

 

The Department proposes an amendment to the Health Code that would require FSEs that are part of chains with more than 15 locations across the nation to add a warning label to menus and menu boards, identifying food items that contain very high levels of sodium.   

 

Sodium and Cardiovascular Disease

Cardiovascular disease is the leading cause of death in New York City, claiming nearly 17,000 lives in in 2012.[i] Hypertension, or high blood pressure, is a major risk factor for heart disease and stroke. A 2013 survey conducted by the Department revealed that 29.1% of adult New Yorkers had been told they had hypertension by a healthcare professional.[ii] Although hypertension is a complex vascular disease with many origins, a well-established connection between sodium intake and blood pressure has been documented in the scientific literature. Specifically, there is a continuous relationship between sodium and blood pressure – typically, the higher an individual’s sodium intake, the higher the individual’s blood pressure.[iii] In addition, disparities exist in terms of sodium intake, hypertension control, and related risk of disease – for example, premature stroke mortality is nearly three times as high among non-Hispanic Blacks in NYC compared to Whites and Asians.

 

New Yorkers Consume Too Much Sodium

Americans consume excessive amounts of sodium. Recent estimates indicate that the typical daily sodium intake of more than 95% of American adults exceeds the recommended daily limit of no more than 2,300mg.[iv],[v]  On average, American adults consume approximately 3,400mg of sodium daily, well above the recommended limit.[vi]  Sodium overconsumption is a reality in NYC as well. A 2010 study conducted found that more than 80% of adults in NYC exceeded recommended daily sodium limits (2,300mg/day), and average daily sodium consumption among New Yorkers was more than 3,200mg.[vii] The NYC study also revealed disparities in consumption with higher sodium intake among non-Hispanic Blacks and Hispanics compared to non-Hispanic Whites.[viii]

 

Restaurant Food is a Primary Source of Sodium

The contemporary food retail environment is an important contributor to the epidemic of sodium overconsumption. Despite myriad efforts and initiatives to curb sodium consumption by public health and other organizations, the sodium content of fast food, in particular, appears to be on the rise. A 2013 study examining the change in the sodium content of menu offerings at 8 leading fast food chains found that the mean sodium content of menu items had increased more than 23% between 1997 and 2010.[ix] Heavily marketed and competitively priced, the food available in many restaurants contains very high levels of sodium. A 2014 study analyzing the nutritional profile of more than 2,500 items from chain restaurants in and near Philadelphia, Pennsylvania, found that adult meals contained an average of 3,512mg of sodium, more than 50% above the daily recommended intake limit.[x] A similar study using receipt data collected in 2007 from over 6,500 transactions occurring at fast food chain outlets in NYC demonstrated that the sodium content of 20% of meals exceeded the daily recommended sodium intake limit.[xi] Today, nearly one-third of the sodium consumed by Americans comes from restaurant food.[xii]

 

New Yorkers Need to be Warned about High Sodium Foods

An additional factor that contributes to sodium overconsumption is the lack of awareness regarding the risks related to excess sodium intake. Consumers typically underestimate the sodium content of restaurant food[xiii] and are generally unaware of both sodium intake recommendations and the major sources of dietary sodium.[xiv] In addition, menu items that are promoted as healthy options, like salads, can contain high levels of sodium (Applebee’s Grilled Shrimp ‘n Spinach Salad with regular dressing contains 2,990 mg of sodium, Baja Fresh Mexican Grill’s Shrimp Tostada Salad contains nearly 2,500mg of sodium), putting even the most health-conscious consumers at risk. Differences in formulation that result in similar foods containing highly variable amounts of sodium present another obstacle to consumers trying to comply with sodium intake recommendations. For example, Panera Bread offers a Smokehouse Turkey® Panini that contains 2,590 mg of sodium and a Roasted Turkey & Avocado BLT Sandwich that contains 960mg of sodium.

 

It is imperative that consumers are readily able to identify menu items containing the recommended daily limit of 2,300mg or more of sodium, because these items are clearly incompatible with recommendations regarding sodium consumption. The proposed consumer warning label will provide consumers with information about food items that contain exceedingly high sodium levels and will empower them to make well-informed decisions when making choices for themselves and their family members in the food retail environment.

 

Proposed Changes

The Department proposes amending Health Code Article 81 to add a new section 81.49 requiring chain FSEs (those with 15 or more locations nationally) to warn consumers about any menu items containing 2,300mg of sodium or more.[xv]

 

This policy would impact FSEs with 15 or more locations nationally, capturing leading fast-food and fast-casual restaurants, which can easily make sodium information available.

 


[i] Zimmerman R, Li W, Gambatese M, Madsen A, Lasner-Frater L, Van Wye G, Kelley D, Kennedy J, Maduro G, SunY. Summary of Vital Statistics, 2012: Mortality. New York, NY: New York City Department of Health and Mental Hygiene, Office of Vital Statistics, 2014.

[ii] NYC DOHMH  Community Health Survey, 2013

[iii] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2010. 7th Edition, Washington, DC: U.S. Government Printing Office, December 2010.

[iv] Centers for Disease Control and Prevention. Trends in the Prevalence of Excess Dietary Sodium Intake – United States 2003-2010. MMWR 2013;62:1021-1025.

[v] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2010. 7th Edition, Washington, DC: U.S. Government Printing Office, December 2010.

[vi] Centers for Disease Control and Prevention. Trends in the Prevalence of Excess Dietary Sodium Intake – United States 2003-2010. MMWR 2013;62:1021-1025.

[vii] Angell SY, Yi S, Eisenhower D, Kerker BD, Curtis CJ, Bartley K, Silver LD, Farley TA. Sodium Intake in a Cross-Sectional, Representative Sample of New York City Adults. American Journal of Public Health. 2014;104(12):2409-16.

[viii] Angell SY, Yi S, Eisenhower D, Kerker BD, Curtis CJ, Bartley K, Silver LD, Farley TA. Sodium Intake in a Cross-Sectional, Representative Sample of New York City Adults. American Journal of Public Health. 2014;104(12):2409-16.

[ix] Rudelt A, French A, Harnack L. Fourteen-year trends in sodium content of menu offerings at eight leading fast-food restaurants in the USA. Public Health Nutrition. 2013;17(8):1682-88.

[x] Auchincloss AH, Leonberg BL, Glanz K, Bellitz S, Ricchezza A, Jervis A. Nutritional Value of Meals at Full-service Restaurant Chains. J Nutr Educ Behav. 2014;46:75-81.

[xi] Johnson CM, Angell SA, Lederer A, Dumanovsky T, Huang C, Bassett MT, Silver LD. JAMA Internal Medicine. 2010;170(8):732-34.

[xii] Drewnowski A, Rehm CD. Sodium Intakes of US Children and Adults from Foods and Beverages by Location of Origin and by Specific Food Source. Nutritients. 2013;5:1840-55.

[xiii] Burton S, Creyer E, Kees J, Huggins K. Attacking the obesity epidemic: The potential health benefits of providing nutrition information in restaurants. American Journal of Public Health. 2006;96:1669–1675.

[xiv] Sarmugan R, Worsley A. Current Levels of Salt Knowledge: A Review of the Literature. Nutrients. 2014;6:5534-559.

[xv] Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments. Final Rule, 79 (230) Fed Reg 71156-71259. (December 1, 2014) (to be codified 21 CFR pt 11 and 101).

 

 

 

 

 
Subject: 

Proposal to adopt §81.49 (sodium warning) of Article 81 of the Health Code to require food service establishments to warn diners about menu items containing high amounts of sodium.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101-4132
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Friday, July 24, 2015
Proposed Rules Content: 


Statement of Basis and Purpose

 

Statutory Authority

These amendments to the New York City Health Code (the Health Code) are promulgated pursuant to sections 558 and 1043 of the New York City Charter (the Charter).  Sections 558(b) and (c) of the Charter empower the Board of Health (the Board) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (the Department) extends.  Section 556 of the Charter authorizes the Department to supervise and regulate the City’s food supply.  Section 1043 grants the Department rule-making authority. 

 

Background

 

The Commissioner of the Department is the “permit issuing official” designated in the State Sanitary Code (10 NYCRR Chapter 1) Subpart 14-1 to enforce provisions of that Code applicable to the operation of food service establishments in the City of New York (the City).  In the City, food service establishments are also subject to provisions of the New York City Health Code and to Chapter 23 of Title 24 of the Rules of the City of New York.  The Department’s Division of Environmental Health enforces the provisions of the State Sanitary Code and the City’s Health Code, as well as the Department’s rules applicable to such establishments.  

 

In 2006, the Board adopted a Health Code provision requiring certain restaurants to post calorie information in an effort to combat the emerging epidemic of obesity and associated diseases, including, type 2 diabetes.  After a legal challenge, the Board repealed that provision and adopted the current version of section 81.50 on January 22, 2008.  The authority of the Board to require that chain restaurants provide this information was upheld by the courts (N.Y. State Rest. Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114 (2d Cir. N.Y. 2009)) and, in 2008, the City became the first jurisdiction in the United States to require chain restaurants to post calorie information on menus and menu boards.

 

Other jurisdictions around the country soon followed by enacting similar provisions and, in 2010, Congress included language in the Patient Protection and Affordable Care Act (the ACA) (Pub.L. No. 111-148 §4205 (2010)), which mandated nationally that chain restaurants post calorie information and have other nutrition information available on premises for their customers.  The ACA directed the FDA to adopt regulations implementing nutrition labeling for restaurants that include calorie information.  Those regulations were published in December, 2014 and will take effect on December 1, 2015. (21 CFR 101.11).  Restaurants in the City that are covered by these federal regulations are required to comply with them.

 

Although the federal requirements for menu labeling are largely similar to the requirements in the Health Code, there are some differences.  For example, restaurants with 20 or more locations nationally will be subject to the federal regulations, while the current Health Code requirements apply to restaurants with 15 or more locations nationally.  Restaurants covered by the new federal regulations will have to include a statement on their menus advising patrons about the number of calories that should be consumed daily.  These restaurants also will have to advise patrons that additional nutrition information is available on premises for anyone who wishes to see it.  While the Department does not have the authority to enforce the federal requirements, it can enforce identical posting requirements in the Health Code.   Where the Health Code currently requires a posting that the federal law will not, the Department will be preempted from enforcing the Health Code requirements in restaurants subject to the federal regulations. 

 

Accordingly, the Department is proposing that the Board repeal and reenact Health Code section 81.50 so that its requirements are identical to the federal requirements that will go into effect on December 1, 2015.  While the new federal requirements only apply to restaurants that are part of chains with 20 locations or more nationally, the Department is proposing that, in New York City, restaurants that are part of chains with 15 to 19 locations nationally continue to provide calorie information.

 

 

Subject: 

Proposal of repeal and reenact §81.50 (posting of calorie information) of Article 81 of the Health Code to make its requirements for posting such information consistent with recently enacted federal rules (21 CFR 101.11)

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street 14th Floor, Room 14-43
Queens, NY 11101-4132
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments (View Public Comments Received:1)

Agency:
Comment By: 
Friday, May 15, 2015
Proposed Rules Content: 


Statement of Basis and Purpose of Proposed Rule

 Background

             The Department of Health and Mental Hygiene (the Department) regulates food service establishments, which include a broad range of businesses and not-for-profit operations that provide food in individual portion sizes for consumption by members of the public, and enforces Article 81 (Food Preparation and Food Establishments) of the New York City Health Code (the Health Code).  Health Code §81.51 authorizes the Commissioner of the Department to promulgate rules for establishing a system for grading and classifying inspection results. Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York implements such a system, and consists of rules as well as three appendices:  Appendix 23-A (Food Service Establishment Inspection Worksheet); Appendix 23-B (Food Service Establishment Inspection Scoring Parameters-A Guide to Conditions) and Appendix 23-C (Food Service Establishments and Non Retail Food Service Establishments Penalty Schedule)

Reason for making changes

At its March 10, 2015 meeting, the New York City Board of Health amended Article 81, reorganizing and renumbering several sections. Renumbering the Health Code sections means that certain violations listed and described in Appendix C must also be renumbered, and in a few cases the brief descriptions of violations updated to accurately reflect these amendments to the Health Code.

Changes proposed   

All references are to the Health Code or, where indicated, to the State Sanitary Code (SSC), except as described below.  

The following is the list of the scored violations where the violation number and/or description must be changed:

Violation   Current                 Renumbered Citation

Code          Citation               and/or Amended Description    

02A      81.09(a)(1) or (5)         81.09 (c)(1) and 81.09 (c)(5) – separates the violations for poultry and

poultry stuffings from those for stuffed and tenderized meats and meat stuffings      

02A      81.09(a)(2)                  81.09(c)(2) – pork heating temperature changed from 155 degrees F to 150 degrees F

02A      81.09(a)(3)                  81.09(c)(3)

02A      81.09(a)(4)                  81.09(c)(4)

02A      81.09(a)(6)                  81.09(c)(6)

02A      81.09(a)                      81.09(c) – other food heating temperature changed from 145 degrees F to 140 degrees F

02C     81.09(a)(7)                   81.09(d)

02D      81.09(a)(10)                81.09(d)(2)

02E       81.09(g)(5)                 81.09(f)(5)

02F       81.09(d)                     81.11

02G      81.09(c)                      81.09(a)(3)

02G      81.09(b)                      81.09(a)(2)

02I        81.09(f)                      81.09(e)(2)

03B      81.04(c)                      same – adds term “required” to describe shellfish tags

03C     81.04(c)                       same – deletes violation for “source of eggs”

03E      SSC14-1.121               NYCHC 141.13   

03E      81.20(d)                      81.20(c) – spelling error “impropse” corrected to “improper”

03F      81.07(K)                      81.07(k) – lower case subdivision referenced

03G      81.07(a)(5)                  81.07(a)(4)

04C      81.07(J)                       81.07(j) – lower case subdivision referenced

04E      81.23(d)(3)                  same  – deletes pesticides not properly “stored” and moves to 4E below;

04E      SSC14-1.60                 deleted; duplicates a general violation 08C  

04H     81.07(a)(3)                   81.07(a)(2)

04J      81.09(h)                       81.09(g) – deletes “used”)

05A     81.09(b) and (c)            81.09(b)

05H     81.29 (a)                      81.29

06B      81.13(g)                      same – adds “e-cigarettes” to smoking prohibition for food workers

06D     81.27(c)                       81.27(b)

06F      81.27(d)                      81.27(c) 

08B      81.24(a)(1)                  81.24(a)

08B      81.24(b)                      81.24(c)

08C     SSC14-1.60 (e)            81.23(d)(4)

08C     81.23(e)                       81.17(g)

09B      81.09(g)                      81.09(f)

10B      81.20(c)                      81.20(b) – term “maintain” corrected to read “maintained”

10E      SSC14-1.44                81.18(a)

10H     81.29(a)(1)                  81.29(a)

10H     81.29(a)(2)                  81.29(a)

10H     81.29(a)(3)                  81.29(b)(1)

10H     81.29(a)(4)                  81.29(b)(2)

10H     81.29(a)(2)                  81.29(a) – test kit for manual/chemical sanitizing

10H     81.29(a)(4)                  81.29(b)(2) – test kit for mechanical/chemical sanitizing

10I       SSC 14-1.110(e)         81.07(o)

 In the list of unscored violations, the only change is the addition of new violation code 22G containing a penalty for violations of Administrative Code §16-329 (c) which prohibits use of expanded polystyrene single service articles.

 

The authority for these rules is found in §556 of the New York City Charter and §81.51 of the New York City Health Code (the Health Code).

 

 

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

Statement of Basis and Purpose

 

 Background

The Administrative Code requires that any owner of a building that has a water tank as part of its drinking water delivery system must have the drinking water tank inspected at least once a year. The inspection must comply with all applicable laws and regulations, including provisions of the Health Code. The results from these inspections must be recorded in a manner set out by the Department’s Commissioner and maintained for at least five years.

Water for thousands of New York City buildings is kept in drinking water storage tanks. The Health Code sets out requirements for maintaining the purity and sanitary condition of the City’s drinkable water supply. The Health Code requires that these drinking water tanks be inspected annually and that the person in control of a building serviced by a drinking water storage tank keep copies of the inspection records and make them available to the Department upon request.

Building owners with drinking water tanks must report annually to the Department after the tanks have been inspected that the inspection has occurred. Annual reporting promotes building owner compliance with the inspection requirement and facilitates the Department’s ability to monitor compliance.  The Department will make data from the reports publically available. These rules specify how the recording and reporting of the drinking water tank inspection must be communicated to the Department.

New Chapter 31 will:

  • Allow for both electronic and paper-based reporting of annual drinking water tank inspection results through either an interactive online form or a printable form available on the Department’s website.
  • Set the deadline for annual drinking water tank inspection result submissions to be no later than January 15 of the following calendar year for which the inspection is due.
  • Make drinking water tank inspection documents filed with the Department available to the public.

 Statutory Authority

The Department of Health and Mental Hygiene is authorized to amend Title 24 of the Rules of the City of New York by sections 556 and 1043 of the New York City Charter, section17-194 of the Administrative Code of the City of New York, and section 141.07 of the New York City Health Code.  Section 556 of the Charter provides the Department jurisdiction to regulate all matters affecting health in the City of New York, and specifically to supervise and regulate the purity and public health aspects of the water supplied in the City.  Section 1043 of the Charter gives the Department rulemaking powers. Subdivision (b) of section17-194 of the Administrative Code authorizes rulemaking by the Commissioner of the Department with regard to annual drinking water tank inspection recording. Subdivision (b) of section141.07 of the Health Code requires the Department to collect reports of such inspections in accordance with its Rules.

 

 

Effective Date: 
Mon, 05/04/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose

 

Statutory Authority

 

These amendments to the New York City Health Code (“the Health Code”) are promulgated pursuant to Sections 558 and 1043 of the New York City Charter (“the Charter”).  Section 558(b) and (c) of the Charter empowers the Board of Health (“the Board”) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (“the Department”) extends. Section 1043 grants the Department rulemaking authority. 

 

Background and New Requirements

           

Currently all facilities in the City of New York that report 25 or more deaths per year, including hospitals, hospices, funeral homes and the Office of Chief Medical Examiner, must submit reports of death to the Department electronically.  This system of electronic death registration enables reporting of 94% of all deaths in New York City.  In order to increase the number of deaths reported electronically, the Department now requires that:

 

  1. All hospitals and hospices reporting ten or more deaths per year (reduced from 25) report them electronically;
  2. Skilled nursing facilities reporting ten or more deaths per year also submit reports of death electronically;
  3. All facilities that are not mandated to report deaths electronically, continue to do so once they begin reporting electronically;
  4. In addition, the Department eliminates the fee currently charged for both processing interim disposition permits and for correcting a final disposition as a result of an interim disposition.

 

The new requirements will increase the number of deaths reported electronically each year.  Furthermore, the elimination of fees charged for both filing interim disposition permits and correcting the final disposition as a result of an interim disposition will encourage filing of interim disposition permits.  Currently, charging these fees discourages funeral directors from filing interim disposition permits, which results in delayed reporting of deaths.

 

The amendments adopted below reflect changes to Article 207, section 207.13 of the Health Code approved for adoption on December 9, 2014 by the Board.                

 

The proposal is as follows:

 

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.

 

 

Effective Date: 
Mon, 04/20/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

Statement of Basis and Purpose

 

Statutory Authority 

            These amendments to the New York City Health Code (the Health Code) are authorized by sections 558 and 1043 of the New York City Charter (the Charter).  Sections 558(b) and (c) of the Charter empower the Board of Health (the Board) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (the Department) extends. Section 1043 grants the Department rule-making authority.  

Background 

The Department’s Bureau of Veterinary and Pest Control Services, which enforces Article 161 pertaining to the control of animals in the City, has requested that the Board  amend various  provisions of Article 161 and Article 11 of the Health Code related to animal control. 

Amendments to Health Code §161.01(a)—circuses and other animal exhibitions 

Health Code §161.01 prohibits the possession of wild and other animals that present hazards to human health and safety.  Subdivision (a) allows for certain exceptions and requires permits for temporary exhibitions, displays and other uses of prohibited animals.  Circuses and wildlife rehabilitators are currently exempt from this section’s permit requirements, and while many voluntarily obtain permits from the Department, they are not obligated to do so.  

Recently, the Department identified some circuses and a wildlife rehabilitator who intended to exhibit or use animals to entertain the public in settings that were not safe.  In one instance, circus animals had not been tested to rule out infection with a disease that could be transferred to humans. In other instances, circus animals were kept in enclosures that either did not adequately protect the public or were too small.  Although circuses are required to comply with the federal Animal Welfare Act, 7 U.S.C. 2131 et seq., administered by the U.S. Department of Agriculture, this law only imposes limited animal care, animal health and public safety requirements.  In yet another instance, a wildlife rehabilitator proposed to present adult performing bears on a theatre stage without barriers to protect the audience from the animals, and without adequate enclosures for the bears to stay in when they were not performing. The Department was able to use its general nuisance authority to address exhibitions and performances that do not adequately protect the public. 

The Department believes circuses and wildlife rehabilitators should be required to have appropriate measures in place to adequately protect the public; and they should only be permitted to perform in the City if they comply with requirements that the City deems necessary to protect public health and safety.  Federal law does not preempt the local regulation of circuses.[1] Accordingly, the Board has amended subdivision (a) of section 161.01 of the Health Code to require that circuses and wildlife rehabilitators in the City obtain permits from the Department in all cases when they intend to exhibit or use performing animals. 

Amendment to Health Code §§161.21 and 11.29—rabies vaccinations 

In 2010, Health Code §161.21 was amended to require that stables keep current rabies vaccination certificates for the horses they house. The Board is amending this section to require that horses’ owners, as well as the stables where they are kept, maintain proof that their horses are vaccinated. 

Health Code §11.29 is also being amended to: 

  1. Add horses to the list of animals that must be immunized against rabies and
  2. Change the terms “dogs” and “cats” in this section to “animals” to reflect that other animals would be specifically required to be currently vaccinated against rabies.

 Amendment to Health Code §161.02—definitions

The Board is adding a definition for “operating” or “in operation” to clarify that an animal business or facility regulated by the Health Code is required to comply with all of the provisions of the Health Code that apply to it regardless of whether the facility or business is open to the public.      

Amendments to §161.15—vaccinations and prohibition of cage or box dryers

This section currently requires boarding kennels to obtain proof from the owners of the dogs for which they care that the dogs have been vaccinated against rabies and certain other diseases. The Board is amending this section to clarify that this requirement is also applicable to grooming parlors, training establishments and pet shops that provide boarding, grooming or training services for dogs.  In addition, these businesses will need to obtain proof from the owners of cats and other animals subject to rabies for which a rabies vaccine is approved that these animals have been vaccinated against rabies.  In response to comments from operators of grooming parlors that owners of dogs frequently do not have copies of all vaccination documents, and that the grooming parlor must contact veterinarians to get such information, the amendment has been further changed to allow owners of dogs brought in for grooming to attest that their dogs have the required vaccinations and to provide contact information for the veterinarian who vaccinated the dogs. Boarding kennels will continue to require proof of dogs having all required vaccinations. And, since all dog and cat owners must show proof that their animals have current rabies vaccinations, owners will be required to provide this proof, and training and grooming establishments will be required to maintain such proof, for all such animals receiving services. 

The Board is also adding a provision mirroring a State law that prohibits grooming parlors and other facilities that handle small animals from drying an animal using an unattended heating element contained in a cage or box dryer. These types of dryers have been associated with injuries and deaths of pets left unattended during drying. State Agriculture & Markets Law §353-e prohibits use of such devices in grooming facilities; this amendment enables the Department to enforce this ban in the businesses it regulates.

The resolution is as follows.

Shall and must denote mandatory requirements and may be used interchangeably.

 


[1] See, e.g., 7 U.S.C. 2145(b); Dehart v. Town of Austin, 39 F.3d 718, 722 (7th Cir. 1994) (“[T]he Animal Welfare Act expressly contemplates state and local regulation of animals.”)

Effective Date: 
Mon, 04/20/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 

  

Statement of Basis and Purpose

 

Statutory Authority

 

            These amendments to the New York City Health Code (the Health Code) are promulgated pursuant to §§558 and 1043 of the New York City Charter (the Charter).  Sections 558(b) and (c) of the Charter empower the Board of Health (the Board) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (the Department) extends. Section 1043 grants the Department rule-making authority. 

 

Background

 

The Charter provides the Department with jurisdiction over all matters concerning health in the City of New York.  The Department’s Division of Environmental Health includes the Bureau of Child Care, which issues permits to non-residential based child care services in accordance with Article 47 of the Health Code, and which regulates school based programs for children aged 3-5 in accordance with Article 43 of the Health Code.  Child care providers who provide child care services in homes or apartments are regulated by the State Office of Children and Family Services, and are not subject to either Article 43 or Article 47.

 

The Board of Health is amending Article 47 of the Health Code in order to improve supervision of children in child care services regulated by the Article.

 

Promoting accountability for children’s whereabouts

 

The Board of Health is amending the Health Code to enhance child safety within child care services.  The amendments strengthen requirements to account for a child’s whereabouts at all times while in care, when children are transported to and from the child care services or during off-site trips, and when children arrive and depart from the child care service.  The Department has, on occasion, been notified by child care service permittees, the police, and parents that children have gone missing for a period of time during the child care day.  These incidents may have occurred because a child exited the service unobserved by staff, was left on transportation vehicles, or was left in a playground or at another off-site trip location.  Additionally, at least one child was discharged to an adult who did not have authority to take the child from the child care service. Though no child was harmed, these incidents are troubling and reflect a need for stronger procedures to monitor the whereabouts of children.

 

The Department has issued guidelines and provided training to assist child care services account for all of the children under their care at all times. When the Department learns that a child care service has been unable to account for a child for any period of time, the Department orders the service to cease operation. Only after the child care service demonstrates that it has determined why the incident happened and that it has instituted concrete measures to prevent it from happening again does the Department authorize it to reopen. 

 

The following amendments reflect best practices already in place at many child care services, and, when implemented at all other services, will help such services implement systems designed to prevent these incidents.

 

  • Written safety plan: Amends §47.11 to add procedural requirements that promote child safety in child care services, establish accountability so that child care services permittees know and can document where any child is at any given time, particularly when children arrive and leave the child care service, whether they are taken on trips offsite, on foot or by other means, or are leaving the service at the end of the day.

 

  • Criminal justice and child abuse screening: Amends §47.19 to add screening with the State Registry for Child Abuse and Maltreatment (SCR) and for criminal history for personnel of child transportation services under contract to a child care service. The former provision required screening for school bus drivers and all other staff employed by the permitted child care service, but not for personnel employed by transportation services operating under contract to a permittee.  The new provision explicitly excludes from screening requirements persons providing transportation arranged by parents. 

 

  • Health; daily requirements; communicable diseases: Amends §47.27(a), (c) and (d)  to require permittees to maintain child attendance records and obtain earlier parental notifications of absences to promote greater accountability for children.  The former provision required parents to contact permittees after their children were absent for three days in order to capture information about children who may have contracted certain communicable diseases. The new provision requires a parent to notify the child care service the same day that a child will not attend on a scheduled day to promote better accountability for children and more rapid investigation of children who fail to show up at the child care service or are lost on a day of scheduled attendance. In response to comments, further changes were made to paragraph (4) of subdivision (c) to clarify that the permittee must document that notification was made, and subdivision (a) was amended to eliminate the proposed requirement that parents or other escorts must sign children’s attendance records.

 

  • Indoor physical facilities: Amends §47.41 to add new subdivisions (k) and (l) to require monitoring of entrances and exits and establishing other security measures. The Department has found that the majority of incidents reported between 2008 to 2013 demonstrating poor child accountability occurred when children wandered out of the child care service entrance door, alone or with another child and that child’s parent, or were left at an off-site location. In some cases, children left the child care service unaccompanied because they were able to open the front door by themselves, even though that door was closed. Locking a means of egress, however, is not permitted under the New York City Fire Code. In order to secure the door in a manner that prevents a child from exiting while also maintaining emergency access, the child care service is being required to install a panic bar on all doors that lead to the outside. Panic bars allow adults to easily open a door but are too high or require too much force for young children. To allow time for compliance, this provision will become effective May 1, 2016.

 

  • Safety; general requirements: Amends §47.57 to establish requirements for adults escorting children out of the child care service and for enhanced off-site trip supervision, since such trips present a substantive risk of children being left behind.  From 2008 to 2013, incidents of inadequate child supervision occurred when children left child care services with adults who were not authorized by parents to take them out of the child care service or when children were left at playgrounds, parks or on other offsite trips.  Subdivision (h) of  this section is being amended to require that permittees maintain information on all adults authorized by parents to take children out of a child care service and a new subdivision (j) is added to require that the permittee appoint a staff member as a trip coordinator who will be responsible for assessing supervision needs, developing guidelines and procedures for when additional staff or volunteers should accompany children on off-site trips, and to incorporate those procedures in the written safety plan. Trip coordinators will also be required to accompany children on offsite trips to improve accountability and lower the risk of leaving children unsupervised. In response to comments that additional staff requirements would be burdensome, this section was revised to clarify that the coordinator is among the staff counted to determine whether the supervision ratios required by Health Code §47.23 are met.

 

  • Transportation: Amends §47.65 to clarify parental consent requirements and adds new procedures for verifying children’s attendance and identity during transportation.  Several incidents of poor accountability have involved children who were left on a vehicle, dropped off at the wrong child care service or at a closed child care service, or simply left outside the child care service unsupervised.

 

Imminent or public health hazards

 

The list of imminent or public health hazards in the definition in §47.01(k) has been amended, modifying paragraph (10) to specify that use of a pillow only by a child younger than two years of age is a public health hazard; and deleting paragraph (13), which addresses holding potentially hazardous foods out of temperature.

 

Children can safely use pillows after age two, according to the safe sleep practices recommendations of the National Resource Center for Health and Safety in Child Care and Early Education Guidelines for Early Care and Education Programs.[i]  Section 47.55(b)(4) and (7) is also being amended to allow pillows to be used by children two years of age or older and to require that when pillows are used they must be stored with each child’s other bedding. 

 

Paragraph (13) of §47.01(k) is being deleted because requirements for holding food are addressed in more detail in Article 81, which is also applicable to child care services.

 

Medical records

 

Health Code §47.25(d) requires that permittees maintain a cumulative, comprehensive medical record for each child.  Section 47.33 requires that permittees also maintain staff physical examination certificates and vaccination records.  These provisions are being amended to clarify that comprehensive medical records of children and staff must be kept on the premises and made available to the Department upon request since Department Early Childhood Educational Consultants conducting inspections are frequently told that these records are not immediately available for review. 

 

Fire safety

 

Health Code §47.59(a), which requires that exit signs at child care services be clear and legible “when required by Department of Buildings” has been amended to reflect current Building Code requirements.  New York City Building Code §BC-1011 requires that all facilities housing child care services (occupancy use group E) have exit signs that are illuminated internally or externally.

 

Nutrition and physical activity updates

 

The Board of Health is amending §47.61(b) of the Health Code to update requirements limiting children’s juice consumption and §47.71(a) and (d) to further restrict sedentary time and television viewing.

 

       Dietary and lifestyle habits and preferences developed at a very early age can often persist and may have a profound impact on an individual’s health later in life. Among preschoolers enrolled in the Women, Infants and Children program in NYC in 2011, 14.5% of 3 year olds and 16.9% of 4 year olds were obese.[ii]  Obese children are more likely than normal-weight children to have risk factors for heart disease,[iii] type 2 diabetes,[iv] and many other disorders and conditions.[v] Obese children are more likely to become obese adults,[vi],[vii] and obesity in adulthood is associated with serious diseases and conditions, and with higher rates of death.[viii] Consequently, it is important to optimize the nutritional quality of the food and beverage offerings in early childhood settings and employ practices that serve to cultivate healthy lifestyle habits. The amendment is intended to update the current requirements for juice, sedentary time and screen time based on current expert recommendations and the best available evidence. 

  • Juice

Former Health Code §47.61(b) authorized child care services to provide children over the age of eight months up to six fluid ounces of 100% juice per day. The amendment  increases the age that 100% juice is permitted to 2 years of age, and reduces the amount of 100% juice that may be served to four ounces per day.

 

This amendment makes the Health Code provision consistent with current standards of the federal Child and Adult Care Food Program (CACFP), allowing four ounces of 100% juice per day for children ages 2 – 5 years old.[ix] Numerous health organizations including the United States Department of Agriculture (USDA)[x], the Institute of Medicine (IOM)[xi], the American Heart Association (AHA)[xii] and the American Academy of Pediatrics (AAP)[xiii] recommend limiting children’s intake of 100% juice. When consumed in moderation, 100% juice can be a healthy beverage; however, the USDA recommends that the majority of a child’s recommended fruit servings should come from whole fruit.[xiv] Despite this recommendation, current data suggest that 100% juice overconsumption by young children is commonplace. Daily per capita caloric intake from 100% fruit juice is increasing among children, including toddlers, and children who consume juice typically consume quantities that far exceed the cited recommendations.[xv],[xvi] A 2002 study of the sources of energy among over 3,000 infants and toddlers demonstrated that 100% fruit juice was the second largest source of energy among toddlers ages 12-24 months and the fourth largest source of energy among infants 4 to 5 months old.[xvii] Despite being offered 100% juice in small quantities, it is likely that children consume juice in multiple settings and at multiple occasions throughout the day, causing overall daily consumption to be above recommended levels.  Water and low-fat milk are the healthiest beverages for children over 2 years of age.[xviii]

  • Television viewing

 Health Code §47.71(d) prohibited screen time for children under 2 years of age and requires that screen time for children 2 years of age and older be restricted to 60 minutes per day of programming that is educational or actively engages children in movement. As amended,  the amount of screen time for children 2 years and older has been further limited to no more than 30 minutes per week.

 

Research suggests that more than 80% of children ages 6 months to 6 years are exposed to some type of screen-based media on a typical day,[xix] and caregivers report that preschool age children spend 2 to 3 hours per day on screen time,[xx],[xxi],[xxii] which exceeds recommended levels of screen time exposure.[xxiii] Surveys reveal that child care centers vary widely in the average amount of screen time provided, from small amounts or none at all[xxiv],[xxv],[xxvi] to 1 or more hours per day.[xxvii],[xxviii] Studies have found that increased screen time exposure in early childhood is related to risk of obesity later in childhood[xxix],[xxx],[xxxi],[xxxii],[xxxiii] and even into adulthood.[xxxiv],[xxxv],[xxxvi]  In recognition that children are exposed to screen time in various settings throughout the day, the AAP, American Public Health Association (APHA), and National Resource Center for Health and Safety in Child Care and Early Education Guidelines for Early Care and Education Programs, the First Lady’s Let’s Move initiative, and the USDA Provider Handbook for the Child and Adult Care Food Program recommend that early care settings limit screen time to 30 minutes per week.[xxxvii],[xxxviii],[xxxix] 

  • Sedentary time

Health Code §47.71(a) required that children not be allowed to remain sedentary or to sit passively for more than 60 minutes continuously, except during scheduled rest or naptime. The amendment reduces the amount of sedentary time to no more than 30 minutes continuously except during scheduled rest or naptime.

 

In an effort to combat early childhood obesity, the IOM recommends that child care providers and early childhood educators implement activities for toddlers and preschoolers that limit passively sitting or standing to no more than 30 minutes at a time.[xl] Limiting time spent on sedentary activities is important, as sedentary activities may take the place of time spent being physically active or otherwise actively engaged. Studies show that children spend a significant amount of time being sedentary in preschool and child care settings[xli],[xlii],[xliii] and that sedentary activities, such as television viewing, may be linked to increased BMI and adiposity in children.[xliv],[xlv]

 

The resolution is as follows.

 

Shall and must denote mandatory requirements and may be used interchangeably. 




[i] American Academy of Pediatrics, American Public Health Association, National Resource Center for Health and Safety in Child Care and Early Education. 2011. Caring for our children: National health and safety performance standards; Guidelines for early care and education programs. 3rd edition. Elk Grove Village, IL: American Academy of Pediatrics; Washington, DC: American Public Health Association. Also available at http://nrckids.org.

[ii] Centers for Disease Control and Prevention. Obesity prevalence among low-income, preschool-aged children — New York City and Los Angeles County, 2003–2011. MMWR 2013;62(2):17-22.

[iii] Freedman DS, Mei Z, Srinivasan SR, Berenson GS, Dietz WH. Cardiovascular risk factors and excess adiposity among overweight children and adolescents: The Bogalusa Heart Study. J Pediatr. 2007;150:12-17.e2.

[iv] Hannon TS, Rao G, Arslanian SA. Childhood obesity and type 2 diabetes mellitus. Pediatrics. 2005;116:473-480.

[v] Han JC, Lawlor DA, Kimm SY. Childhood obesity. Lancet. 2010;375:1737-1748.

[vi] Whitaker RC, Wright JA, Pepe MS, Seidel KD, Dietz WH. Predicting obesity in young adulthood from childhood and parental obesity. N Engl J Med. 1997;37:869-873.

[vii] Serdula MK, Ivery D, Coates RJ, Freedman DS. Williamson DF, Byers T. Do obese children become obese adults? A review of the literature. Prev Med. 1993;22:167-177.

[viii] National Institutes of Health. Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults: the Evidence Report.Bethesda,MD: National Institutes ofHealth,U.S. Department of Health and Human Services; 1998.

[ix] New York State Department of Health, Child and Adult Care Food Program. Healthy Child Meal Pattern. March 2012. Available at: https://www.health.ny.gov/prevention/nutrition/cacfp/docs/cacfp-102.pdf. Accessed April 21, 2014.

[x] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2010. 7th Edition, Washington, DC: U.S. Government Printing Office, December 2010.

[xi] Institute of Medicine (IOM). 2011. Early childhood obesity prevention policies. Washington, DC: The National Academies Press.

[xii] Gidding SS, et al; AHA; AAP. Dietary recommendations for children and adolescents: a guide for practitioners: consensus statement from the AHA. Circulation. 2005 Sep 27;112(13):2061-75.

[xiii] Committee on Nutrition. American Academy of Pediatrics: The use and misuse of fruit juice in pediatrics. Pediatrics. 2001 May;107(5):1210-3. Reaffirmed August 2013.

http://pediatrics.aappublications.org/content/107/5/1210.full

[xiv] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2010. 7th Edition, Washington, DC: U.S. Government Printing Office, December 2010.

[xv] Wang YC, Bleich SN, Gortmaker SL. Increasing caloric contribution from sugar-sweetened beverages and 100% fruit juices among US children and adolescents, 1988-2004. Pediatrics 2008;121(6):e1604-e1614.

[xvi] Fulgoni VL, Quann EE. National trends in beverage consumption in children from birth to 5 years: analysis of NHANES across three decades. Nutr J 2012;11:92.

[xvii] Fox MK, Reidy K, Novak T, Ziegler P. Sources of energy and nutrients in the diets of infants. J Am Diet Assoc. 2006;106(1, suppl 1):S28-S42.

[xviii] Beverages Let’s Move Childcare. Available at: http://www.healthykidshealthyfuture.org/content/hkhf/home/nutrition/beve.... Accessed April 22, 2014.

[xix] Rideout V, Hamel E. The media family: electronic media in the lives of infants, toddlers, preschoolers and their parents. The Kaiser Family Foundation; May 2006.

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Effective Date: 
Mon, 04/20/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose

 

Statutory authority

 

These amendments to Title 24 of the Rules of the City of New York are issued pursuant to §§ 556 and 1043 of the New York City Charter (“Charter”), and §§ 17-503, 17-504, 17-505, 17-506,   17-513, 17-513.3 and 17-513.4 of the Administrative Code of the City of New York (“Administrative Code”).

 

Pursuant to § 556 of the Charter, the Department of Health and Mental Hygiene (the “Department” or “DOHMH”) has jurisdiction to regulate all matters affecting health in the City of New York.  Section 1043 of the Charter empowers the Department to adopt rules necessary to carry out the powers and duties delegated to it.  Chapter 5 of Title 17 of the Administrative Code authorizes the Department to make rules with regard to smoking and electronic cigarette use.

 

Basis and purpose of the rule

 

On December 30, 2013, Local Law 152 was enacted.  It amended §§17-502, 17-503, 17-504, 17-505, 17-506, 17-507, 17-508, 17-510, 17-512 and 17-513.2 of Chapter 5 of Title 17 of the New York City Administrative Code (“Smoke-Free Air Act”).  It also added §§17-513.3 (Retail Tobacco Store and Retail Electronic Cigarette Store Registration), and 17-513.4 (Retail Tobacco Store and Retail Electronic Cigarette Store Verification) to Chapter 5.  Effective April 29, 2014, the local law prohibits the use of electronic cigarettes in all locations where smoking is currently prohibited, and effective October 26, 2014, requires establishments to post signage informing customers of these new restrictions.  Local Law 152 also requires both retail tobacco stores and retail electronic cigarette stores to register with the Department of Health and Mental Hygiene (“DOHMH”), and grants the Department authority to establish a system for verifying the total annual gross sales of retail tobacco stores and retail electronic cigarette stores to determine their eligibility for certain smoking and electronic cigarette use exemptions.

The Department is amending Chapter 10 of Title 24 of the Rules of the City of New York (RCNY) to reflect amendments to the Smoke-Free Air Act made by Local Law 152, and repeal provisions of Chapter 10 that are no longer applicable due to these amendments to the Smoke-Free Air Act. The amendments also clarify certain provisions in Chapter 10 to facilitate compliance with, and enforcement of, the Smoke-Free Air Act.  These amendments, together with the provisions of Chapter 5 of Title 17 of the Administrative Code, affect the use of electronic cigarettes in enclosed areas in public places and in places of employment in New York City.

The rule:

  • Specifies the locations where electronic cigarette use is prohibited;

 

  • Specifies the content of the signage required in locations where electronic cigarette use is prohibited;

 

  • Describes the registration requirements for retail tobacco stores and retail electronic cigarette stores; and

 

  • Repeals obsolete provisions of the Department’s Rules related to separate smoking rooms in bars and owner operated bars that have been repealed in the Smoke-Free Air Act.

 

Comments and changes to the proposal

 

                 An owner of a local electronic cigarette store requested that e-liquid and electronic cigarette accessories be specifically referenced in § 10-17, so that their sales are considered when determining whether a store is a retail electronic cigarette store that must register with the Department.  This change is unnecessary.  The definition of electronic cigarette in § 17-502(qq) of the Smoke- Free Air Act as amended by Local Law 152 includes “any refill, cartridge, and any other component of an electronic cigarette,” and that same definition is being adopted here.  Thus, sales of e-liquid and accessories are already included in “electronic cigarette sales” in § 10-17.

 

An electronic cigarette trade association requested that the rule exempt adult venues such as bars and nightclubs, certain privately owned businesses, and outdoor locations such as parks and beaches, from the prohibition on electronic cigarette use in locations where smoking is prohibited.  However, the Smoke-Free Air Act does not exempt any of these locations. 

 

One change has been made to these amendments to Chapter 10.  The annual registration requirement for retail tobacco stores and retail electronic cigarette stores has been eliminated in §§ 10-16 and 10-17 to simplify the registration process for both retailers and the Department to a one-time registration. 

 

Effective Date: 
Mon, 03/16/2015

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