Statement of Basis and Purpose
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.
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.