On Friday, the Food Marketing Institute and the National Restaurant Association teamed with several other foodservice industry groups to take legal action against the City of New York for what it said was premature enforcement of nutritional disclosure guidelines for foodservice establishments.
The National Association of Convenience Stores and the New York Association of Convenience Stores also joined FMI in the suit, which was filed in the U.S. District Court for the Southern District of New York.
FMI, NRA and their cohorts argue that the city is flouting impending federal transparency regulations by enforcing a similar local code as soon as next month.
“The federal law preempts a municipality from taking matters into its own hands, and this is exactly what New York City is attempting to do,” said Jennifer Hatcher, FMI chief public policy officer in a statement.
“New York City’s actions threaten interstate commerce and would introduce unneeded elements of confusion into the food retail marketplace.”
Regulation 81.50 is the latest version of New York’s nutritional transparency mandate and enforcement is scheduled to begin on August 21, 2017.
At that point, foodservice establishments within NYC that have 15 or more locations nationwide would need to disclose calorie counts and other nutritional information as well as post a statement about the daily recommended caloric intake of 2,000 calories.
The regulations would impact about 3,000 restaurants and 1,500 food retailer chains according to the city’s website.
Though New York was an early adopter to nutritional transparency, with chain restaurants being held to similar standards for about a decade, the guidelines are new for other retailers such as grocers.
“Federal preemption for menu labeling is the law of the land,” Angelo Amador, executive director at the NRA’s Restaurant Law Association said in statement.
“New York City is overstepping its legal authority in its attempt to enforce menu labeling ahead of the federal compliance date of May 7, 2018. We expect our preliminary injunction request will be granted to this clear violation of federal law.”
The U.S. Food and Drug Administration’s guidelines are currently scheduled to take effect about 10 months later in May of 2018.
Originally planned for a May of 2017 rollout, the FDA’s rules would require foodservice establishments with 20 or more units under the same brand- as opposed to New York’s 15 or more cutoff- to make nutritional info and calorie counts available in a “direct and accessible manner” on either menu boards or other literature, according to the agency’s website.
This new FDA rule includes both selections prepared onsite at grocery stores such as made-to-order sandwiches or other items ordered off of a menu — as well as restaurant meals.
The FDA regulations were delayed another year shortly before the deadline came to pass in order to ensure that impacted establishments had adequate time to prepare.
Court documents claim that that the local New York City rules are not identical to the impending FDA rules because they are effective immediately which would clash with the federal government’s plan to delay compliance for one more year. The plaintiffs have asked the court to stop New York City from enforcing the regulations on the local level prior to the nation-wide rollout next May.
“New York City can’t jump the gun and start imposing fines when FDA hasn’t even figured out how disclosures should be made," said Lyle Beckwith, senior vice president of government relations for NACS via statement.
“Doing that holds stores to standards that no one can meet and undermines the point of having a federal law in the first place.”
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