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Calif. inspectors propose grace period for menu labeling

With specifics of federal rules unclear, group urges penalty-free enforcement of state law

An organization representing restaurant inspectors across California proposed guidelines Friday recommending the penalty-free enforcement of state menu-labeling requirements that go into effect Jan. 1.

California restaurant chains face uncertainty as the second phase of state menu-labeling rules goes into effect with the new year — despite the expectation that they will be pre-empted by federal rules coming later in 2011.

Though both the state and federal laws require the posting of calorie counts on menu boards and menus, the specifics of how restaurants should disclose the information — from the size of the font, to the menu items impacted and other details — may differ. The U.S. Food and Drug Administration is not expected to nail down specifics on the federal rules until March 2011.

Concerned that chains will be forced to go through the expense of complying with the state rules, only to have to retool when the federal directive is issued, the California Conference of Directors of Environmental Health, or CCDEH, recommended Friday that inspectors allow restaurant chains a few months without formal sanctions — though the state law will still be technically enforced.

Justin Malan, CCDEH executive director in Sacramento, Calif., said the group proposed that inspectors use the transition period to educate restaurant operators about their obligations for nutrition disclosure.

“We will write them up as not in compliance” if restaurants are not following the state rules, Malan said. “But there will be no formal sanctions: no fines, penalties or restaurant close downs.”

CCDEH represents environmental health directors from the state’s 62 local jurisdictions. The guidelines issued Friday are not binding, however, and each local jurisdiction has the authority to decide for itself how to approach the issue, Malan said.

“We’ve got this gray area or hiatus period” with a state law in effect and federal rules coming, he said. “Our view is that it just doesn’t make sense for a large chain to spend thousands, maybe even tens of thousands [to bring menus and menu boards into compliance], and to have to tear it down in a few months.”

In September, the California Restaurant Association and the California Retailers Association asked for a written opinion from the state Department of Public Health clarifying the timing of the expected pre-emption of the federal menu-labeling law over the state law.

The industry groups argued that the federal menu-labeling mandate — which was part of the sweeping health care reform bill signed into law in March — is not identical to the state law, and therefore the federal rules should pre-empt California’s requirements, making them unenforceable.

In November, however, the California Department of Public Health responded by saying the issue of pre-emption was a matter for the courts or the FDA, not a state agency.

Meanwhile, restaurant operators have been forced to make a decision whether to comply with the state rules or wait for what’s to come.

“It’s like watching two ships come into port and trying to figure out which lands first,” said Harald Herrmann, president and chief executive of Yard House restaurants, based in Irvine, Calif.

Because Yard House has fewer than 20 units in California, the state mandate would not apply to the chain. But the restaurants are complying with state rules anyway, Herrmann said, because consumers will expect the information to be available.

Anna Graves, an attorney and co-leader of the restaurant, food and beverage industry group of Pillsbury Winthrop Shaw Pittman LLP in Los Angeles, said she is recommending that her chain restaurant clients check with each jurisdiction where they operate to see where health inspectors stand on the issue.

Some may want to weigh the cost of reprinting menus against the possibility of penalties.

“It’s a risk-versus-cost analysis you have to do,” Graves said.

Angelo Bellomo, director of environmental health for the Los Angeles County Department of Public Health, for example, said his agency would likely follow the CCDEH guidelines.

“We think their approach is reasonable,” he said. “We would hate to see restaurants get into compliance with the state directive only to have to redo it.”

Bellomo said inspectors in Los Angeles County would continue to enforce and apply penalties for the first phase of the California law, which requires that restaurant chains with 20 or more units in the state make nutrition information available.

After Jan. 1, however, inspectors will not deduct points for being out of compliance with the second phase, which requires the posting of calories on menus and menu boards. As a result, letter grades that restaurants must post to reflect their inspection score in the county likely will not be impacted.

Bellomo said the conversation on enforcement remains fluid and will likely continue as the federal rules develop in early 2011. By mid-year, he said, inspectors will likely shift into strict enforcement mode as more is known about the federal rules.

“We want the direction we’re giving the industry to be clear so there’s no loss of energy and no loss of resources,” he said.

Even with reassurance that penalties will not be applied, Graves said chains in California face the risk of class-action lawsuits for non-compliance.

Operators say the lack of clear guidance on the issue has been frustrating.

“We would have liked for the state and federal legislation to be more coordinated,” said Thien Ho, a spokeswoman for Rosemead, Calif.-based Panda Restaurant Group, the parent to the Panda Express chain. “Other states where we have restaurants have deferred to the federal deadline, which makes more sense to us.”

Still, the chain intends to comply with the state requirements on Jan. 1, she said, “but doing so is not without a mass effort by our operators.”

Contact Lisa Jennings at [email protected].

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