Facing pushback from the federal government, New York City officials have decided to postpone the planned enforcement date for a law requiring some establishments to post calorie counts on their menus.
The city had intended for Aug. 21 to be the date when it would begin levying fines against businesses that do not comply with the new rule, which would have been almost nine months before the U.S. Food and Drug Administration’s planned promulgation of a similar rule.
In 2008, New York City became the first city in the country to require calorie labeling in chain restaurants.
In 2010, the federal government followed suit and included a calorie-count provision in the Affordable Care Act, but promulgation of the rule was delayed several times.
Before the latest delay, the FDA had planned to begin implementation of the new rule on May 5, but one day prior it announced it would postpone enforcement by one year, citing ongoing concerns about the final rule.
In May, Mayor Bill de Blasio announced that the city would move forward with an enhancement of its own rule to require chain restaurants to post calorie counts for prepared foods in chain convenience stores and grocery stores and other nutritional information.
In July, groups representing convenience stores filed suit in federal court in Manhattan to block enforcement of the new rule, arguing that the local law is pre-empted by federal law.
Earlier this week, prosecutors from the U.S. Attorney’s Office for the Southern District of New York filed a brief in the case concurring with industry groups that the local rule is pre-empted by the federal Food, Drug and Cosmetic Act.
A hearing in the case had been scheduled for Wednesday morning before U.S. District Judge Victor Marrero of the Southern District of New York, but attorneys met in the judge’s robing room and no public hearing was conducted.
In comments to reporters following the in camera hearing, New York City Health and Mental Hygiene Commissioner Mary Travis Bassett said enforcement of the local rule will be postponed at least until after a scheduled Aug. 25 hearing in the case.
Bassett also said the Trump administration is intent on “rolling back the clock” on the calorie-count rule already in place and expressed concern about the latest delay in implementing a rule at the federal level.
“Let’s be frank here—with this administration a delay may mean never,” Bassett said.
Thomas Merrill, general counsel for the health department, said that the merits of the case were not discussed during the in camera hearing.
The Department of Justice did not respond to a request to comment on Bassett’s remarks.
Assistant U.S. attorney Stephen Cha-Kim filed the brief on behalf of the federal government. Steptoe & Johnson attorneys Linda Bailey, Shannen Coffin, Charles Michael and Osvaldo Vazquez are appearing for the industry group.
Assistant corporation counsels Mark Muschenheim and Max Sarinsky of the city’s Law Department are appearing for the city in the case.