Article 81 Subscribe to RSS - Article 81

Proposed Rules: Open to Comments

Log in or register to post comments
Agency:
Comment By: 
Thursday, February 6, 2020
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Background

            The Department of Health and Mental Hygiene (the Department) regulates New York City 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 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 (24 RCNY) implements such a system, and consists of rules and three appendices: 

  • Appendix 23-A (Food Service Establishment Inspection Worksheet) summarizes the subjects covered by a Department inspection and the points that can be assigned for each type of violation observed.
  • Appendix 23-B (Food Service Establishment Inspection Scoring Parameters-A Guide to Conditions) expands on the violation descriptions and provides examples of violations at different condition levels, from I (least serious) to V (most serious). 
  • Appendix 23-C (Food Service Establishments and Non Retail Food Service Establishments Penalty Schedule) sets forth the penalties to be imposed for both scored and unscored violations when the violations cited on Department inspections are sustained by hearing officers after a respondent appears to answer a summons or when the respondent fails to appear and is found in default.  

Reason for changes

At its March 10, 2015 meeting, the New York City Board of Health amended Health Code Article 81, reorganizing and renumbering several sections and adding some new provisions. Chapter 23’s Appendix 23-C was previously amended in rules effective August 8, 2015 to include most of the Health Code renumbering changes, so that penalties could be imposed following adjudications of the newly-numbered Health Code provisions, but the descriptions and condition levels assigned to violations in Appendices 23-A and 23-B were left unchanged.  In addition, effective December, 2018, a new scoring and grading scheme was established for mobile food vending unit inspections in accordance with amendments to Chapter 6 of the Department’s rules. Those amendments resulted from enactment of Local Law 108 of 2017. That local law added a new section 17-325.3 to the New York City Administrative Code (the “Administrative Code”), requiring the Department to establish a mobile food vending unit grading scheme consistent with Chapter 23’s scheme for grading non-mobile food service establishments.  

The Department is now proposing to amend all three appendices in Chapter 23 so that their descriptions of violations are consistent with the provisions of the Health Code and to promote consistency in enforcement and adjudications. The appendices in Chapter 23 are also being amended to match as much as possible the language, violation condition levels and penalties of Chapter 6’s newly amended appendices. Some distinctions will remain since mobile food vending unit operations and locations differ in facilities, functions and items vended compared with those of food service establishments located in permanent structures. For example, no toilets are required on mobile food vending units, and their operations do not include tobacco sales.  Appendices in Chapter 6 also reference specific mobile food vending violations of Chapter 6, Article 89 of the Health Code and Title 17 of the Administrative Code which are not applicable to non-mobile food service establishments. 

The Department proposes to add a scored violation for adulterating food with prohibited substances.  A recent amendment to the State Sanitary Code (14 NYCRR § 14-1.89) prohibits service of food and drink items with residual unevaporated carbon dioxide and liquid nitrogen, either of which can cause severe damage to skin and internal organs.  Other substances that are not approved under federal regulations as “generally recognized as safe” or “GRAS” food additives include activated charcoal, kava-kava, cannabidiol and marijuana.  See, https://www.fda.gov/food/generally-recognized-safe-gras/gras-notice-inventory

No changes proposed will reduce critical violation condition levels in Appendix 23-A and 23-B since these levels are based on determinations of public health risk by the Department and the US Food and Drug Administration’s Food Code.  As indicated in the listing below, a few violations are no longer being scored.    

Changes to the unscored violations listed in Appendix 23-C include new violations of  Department of Sanitation rules provisions related to composting which are enforced by the Department of Health at certain establishments.  Renumbered and additional violations and violation codes have been included for unscored tobacco-related violations to reflect changes in the Administrative Code and in the coding system used by Department inspectors.  

Changes proposed

Appendix 23-A and Appendix 23-B

The following is a list of violations and descriptions that are being amended to more accurately reflect the current provisions of Health Code Article 81, and to clarify terms.  Some condition levels and points are being amended, consistent with the Department’s assessment of  public health risk, adopting recommendations of the Food Service Establishment Advisory Board established in 2013 pursuant to section 17-1503 of the Administrative Code “to advise the Commissioner concerning matters related to the food service establishment sanitary inspection program … .”  Some of the Appendix 23-B examples of condition levels are also being amended to reflect conditions observed during inspections.  

As described below, the listed violation codes correspond to those in Appendices 23-A and 23-B, and the section (§) numbers to related Health Code provisions unless other law is cited.

 

Violation Code     

Health Code provision and description of change in Appendices 23-A and 23-B

 02A

§81.09(a) amends cooking temperatures and uses the term “TCS” (temperature control for safety) for “potentially hazardous foods” to characterize the foods to which the requirements apply

02C

§81.09 uses the term “cooled” instead of “refrigerated”

02F

§81.11 adds a reference to the new required written consumer advisory; condition level reduced from IV to I

02G

§81.09 specifies foods subject to temperature requirements

02H  

§81.09(e) clarifies that cooling starts upon removal from cooking or hot holding

02I

§81.09(e)(2) clarifies requirements for cooling food after removal from cold holding

02J

§81.12 adds requirements for reduced oxygen packaging (“ROP”)

03A     

§81.07(m) adds ‘on premises animals slaughtered’ to categories of foods from unapproved sources

03C

§81.07(c) clarifies prohibition on use of unpasteurized egg products

03D

§81.07(b) amends requirements for handling damaged hermetically sealed, canned foods and other food packaging

03E

§81.20(a) clarifies requirement for potable water supply

03I    

§81.04(e) adds provisions to prevent food borne illness from food establishment-packaged unpasteurized juices

04B

§81.13 adds spitting to food worker prohibited conduct

04D

§81.13(d) adds violations for failing to change gloves when required

04E

§81.23(d)(3) adds the term “pesticide”

04J      

§81.09(g) clarifies the violation for not using thermometers and decreases violation condition level from condition IV to condition I

04N

§81.23 adds “other nuisance pests” to categories of prohibited pests

04P

§71.05 prohibits adulteration of food and is being cited as a new scored violation; the category also includes the new Sanitary Code (10 NYCRR §14-1.89) prohibition on service of food with unevaporated liquid nitrogen and carbon dioxide 

05A

§81.20(b) adds requirement for a sewage disposal system

05C

§81.07(a)(1) adds requirement for a culinary sink or equivalent

05D     

§81.21(a) amends placement requirements for hand wash sinks

05F     

§81.18 adds requirement for outdoor refrigerators

05G    

§89.27(d) prohibits sidewalk, street use by a commissary for cleaning mobile food units

05H    

§81.46 adds requirements for reuse of refillable containers

06A    

§81.13 reflects additional worker hygiene requirements

06B    

§81.13(g) adds “e-cigarettes” to smoking prohibition for food workers

06J     

§89.27(b) requires record keeping at mobile vending commissaries

08A    

§81.23 not to be cited at condition III or IV for harborage or conditions conducive to pests unless pests or evidence of pests are also present; if pests are not present, “conditions conducive” alone such as defective walls and floors will be cited as category 10F non-food contact surface violations, at condition levels I through IV

08B    

§81.24 clarifies garbage handling requirements

08C    

§81.23(d)(4) prohibits use of unprotected unlocked bait stations

10G   

§81.29 deletes lower condition levels because if any step in utensil or ware washing is omitted, utensils and wares are not sanitized

10L & 10M

10L(requires covered receptacle in women’s toilet per State Sanitary Code §14-1.142) and 10M (§81.19 prohibiting unshielded light bulbs) are no longer enforced as scored violations and are therefore being deleted from Appendices 23-A and 23-B

99B   

General other. This category, originally intended to include unspecified Health Code violations, is being deleted from the lists of scored violations in Appendices A & B since any violations not included in appendices A and B are by definition unscored. Violations for unscored Health Code provisions cited on inspections are, however, subject to the minimum prescribed penalties of Health Code §3.11, and are included in the unscored violations penalties in Appendix 23-C.

 

            Appendix 23-C

            Appendix 23-C specifies civil penalties for food service establishment violations adjudicated at the Office of Administrative Trials and Hearings (“OATH”) Hearings Division. It also includes penalties for violations of other provisions of law enforced by the Department, including for lack of heating, and for illegal sales and use of tobacco, non-tobacco, electronic cigarettes, and other smoking products. 

Appendix 23-C is divided into penalties for scored violations specified in Appendices 23-A and 23-B, and for unscored food establishment and other violations enforced by the Department.  Because the codes for many of the unscored violation penalties were amended to be consistent with the codes in Department inspectors’ hand-held computers, the table of unscored penalties is being repealed and reenacted. 

Some of the penalty provisions of Appendix 23-C were previously amended in July, 2015 to reflect the 2015 Health Code Article 81 changes as well as earlier amendments to the Administrative Code related to sales of tobacco and non-tobacco smoking products and e-cigarette use.  Additional changes made to provisions of the Administrative Code –Smoke Free Air Act, Tobacco Product Regulation Act and Tobacco Sales Act –that are enforced by the Department are reflected in further amendments to Appendix 23-C’s unscored violation penalties.  The monetary penalties listed in Appendix 23-C for violations of City and State tobacco laws that are also enforced by the Department of Consumer Affairs (DCA) are consistent with DCA’s penalties. 

 

Scored Violations

Violation

Code

Citation and Amendments Proposed

02G

§81.12(d)(4) deletes the penalty for cold reduced oxygen packaged (ROP) food since there is a violation penalty for the same provision that includes all ROP foods.

03A

§81.07(m) new penalty for slaughtering animals in an FSE

03I

§81.04(e) new penalty for new Health Code provision requiring warning label for packaged unpasteurized juices

04B

§81.13 new penalty for spitting by food worker

04D

§81.13(d) new penalty for failing to change gloves when required

04N

§81.23 adds “other nuisance pests” to categories of prohibited pests

04P

§71.05 and State Sanitary Code §14-1.89 added when food is adulterated with non-GRAS substances

05F

§81.18 new penalty for improper outdoor refrigerator use, consistent with Health Code

05G

§89.27(d) new penalty for sidewalk, street use by commissary for cleaning mobile food units

05H

§81.46 new penalty if no approved written standard operating procedure when reusing customers’ refillable containers

06A

§81.13(f) new penalties reflect new Health Code worker hygiene requirements

06J

§89.27(b) new penalty for record keeping violations at mobile vending commissaries

08A

§89.23(b)(2) violation for not having pest exterminator contract is deleted from the scored violation penalties and added to the unscored penalties in category 18I

09C

§81.07(m) adds penalty for keeping edible live fish in insanitary tank

 

Unscored Violations

 

            As previously noted, this list of penalties is being repealed and re-enacted so that the referenced violation codes match those in Department inspectors’ hand-held computers.  A new column has been added for convenience to show the penalty to be imposed if the respondent fails to appear to answer a summons and is found in default since many of these penalties may not be doubled on default. 

New penalties have been added for violations of tobacco, smoking and related laws, Health Code sodium warning violations, additional calorie posting requirements consistent with federal law, dogs in certain outdoor seating areas of food service establishments, listing prohibited beverages on children’s menus, failing to post healthy eating messaging, and new organic recycling requirements.  Some previously scored violations that are being removed from the scored portion of Appendix 23-C have been added to the unscored portion of the Appendix. 


 Statutory Authority

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).

  
Subject: 

Proposal to amend Appendices 23-A, 23-B and 23-C of Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York to reflect the most recent amendments to Article 81 of the New York City Health Code and the New York City Administrative Code.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 14th floor, Room 14-31
Queens, NY 11101
Contact: 

Svetlana Burdeynik , (347) 396-6078 or ResolutionComments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

 

Statutory Authority

 

These amendments to the Health Code are promulgated pursuant to sections 558 and 1043 of the Charter.  Sections 558(b) and (c) of the Charter empower 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 the Sanitary Code applicable to the operation of food service establishments in New York City.  In the City, food service establishments are also subject to provisions of the City’s Health Code and to Chapter 23 of the Department’s rules, found in 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 that provision was found to be unenforceable by a federal court, the Board 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 to their customers was upheld by the courts (N.Y. State Rest. Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114 (2d Cir. 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) which mandated nationally that chain restaurants post calorie information and have other nutrition information available on premises for their customers.  (Pub.L. No. 111-148 §4205 (2010)).  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).  Although they will be in effect, the FDA recently announced that it will be issuing additional guidance for covered establishments which will not have to comply with the rules until December 1, 2016.  (80 FR 39675).  Establishments in the City that are covered by these federal regulations will be 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.  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. For example, 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.  The Department can enforce posting requirements in the Health Code that are identical to the federal requirements and will continue to enforce such provisions for all restaurants with 15 or more locations nationally after the federal regulations take effect on December 1, 2015.  Where the Health Code currently requires a posting that the federal regulations will not, the Department will be preempted from enforcing the Health Code requirements in restaurants subject to the federal regulations.

 

Accordingly, the Health Code section 81.50 is being repealed and reenacted so that its requirements are identical to the federal requirements.  In order to allow covered establishments to benefit from the additional time allowed by the FDA for compliance, the effective date of the reenacted section 81.50 is being made effective on December 1, 2016.  Restaurant-like establishments, which are not yet required to provide calorie information, will benefit from the FDA’s guidance and this additional time as they plan to come into compliance.  Chain restaurants that currently post calorie information will continue to do so pursuant to the current version of section 81.50.  They, however, will not be required to post the additional signs and provide the additional nutrition information required by federal law, and incorporated into the new version of section 81.50, until December 2016.  In response to a comment, the definition of “similar food retail establishment” has been clarified.

 

 

Effective Date: 
Thu, 12/01/2016

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

 

Statutory Authority

Section 558 of the Charter authorizes the Board to amend the Health Code and to include in the Health Code all matters to which the authority of the 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 New York City 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 Board is amending the Health Code to 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 2013.[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.  More than 95% of American adults report consuming more than 2300 mg of sodium per day, the maximum recommended daily limit.[iv],[v]  On average, American adults consume approximately 3,400 mg of sodium daily, well above the recommended limit.[vi]  Sodium overconsumption is a reality in NYC as well. A 2010 study conducted found that average daily sodium consumption among New Yorkers was more than 3,200 mg.[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 3,512 mg 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 2,500 mg 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 960 mg of sodium.

 

It is imperative that consumers are readily able to identify menu items containing the recommended daily limit of 2,300 mg 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.

 

Amendments to Article 81

Accordingly, Health Code Article 81 is being amended 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 2,300 mg of sodium or more.[xv] The schedule of section headings in Article 81 is also being amended to include the new section. 

 

These amendments affect FSEs with 15 or more locations nationally, capturing leading fast-food and fast-casual restaurants, which can easily make sodium information available.  The definition of a covered establishment in paragraph (2) of subdivision (a) has been made consistent with the definition in section 81.50.  In response to a comment, the definition for food with high sodium content in paragraph (3) of subdivision (a) has been clarified.

 




[i]. Zimmerman R, Li W, Lee E, Lasner-Frater L, Van Wye G, Kelley D, Kennedy J, Maduro G, Sun Y. Summary Of Vital Statistics, 2013: Mortality. New York, NY: New York City Department Of Health and Mental Hygiene, Office Of Vital Statistics, 2015.

[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)

 

Effective Date: 
Tue, 12/01/2015

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 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: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):