Food Preparation and Food Establishments (Article 81) - Repeal and Reenact Section 81.50
Proposed Rules: Closed to Comments
Statement of Basis and Purpose
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.
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 After a legal challenge, the Board repealed that provision and adopted the current version of section 81.50 on January 22, 2008.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.