For now, there will be no clash between the Food and Drug Administration and local officials regarding enforcement of New York City’s rule requiring certain food vendors to post calorie counts on their menus.
On Friday, a city attorney and an attorney for an industry group representing businesses that would have been subject to the city’s updated calorie-count requirement signed a settlement agreeing to hold off enforcement until next May, when the federal government plans to implement its own rule.
New York City has enforced a calorie-count requirement for chain restaurants with 15 or more locations nationwide since 2008.
The federal government followed suit in 2010 and included a calorie-count provision in the Affordable Care Act, but promulgation of the rule was delayed several times.
New York City’s updated rule, which it planned to begin enforcing this past week until the federal government stepped in, expands the posting requirement to chain grocery stores and convenience stores.
Steptoe & Johnson partner Shannen Coffin appeared for the plaintiffs, which are the National Association of Convenience Stores, the New York Association of Convenience Stores, the Food Marketing Institute and the Restaurant Law Center.
“We will continue to work with the FDA and Congress on behalf of the restaurant industry to ensure a uniform national menu labeling standard is put in place across the country,” said Angelo Amador, executive director of the Restaurant Law Center.
New York City Health and Mental Hygiene Commissioner Mary Travis Bassett said in a statement that some businesses who would have been affected by the new requirement already began posting calorie counts.
“Their patrons want it and the businesses have obliged,” Bassett said. “We hope this trend continues.”
Assistant corporation counsel Mark Muschenheim appeared for the city.
While the city will not issue fines to businesses until May, it will continue education efforts.
Also on Friday, FDA Commissioner Scott Gottlieb said the agency will issue guidance for menu labeling requirements later this year.
The parties in the suit were preparing for a legal fight over federal pre-emption of the local rule before the settlement.
According to the settlement, Southern District Judge Victor Marrero held in abeyance the plaintiffs’ motion for a preliminary injunction and the defendants’ cross-motion to dismiss. Marrero will hold a hearing on the city’s motion on the FDA’s planned implementation date.
In a conference call with reporters following Marrero’s approval of the statement, Bassett said that, while the city will not do battle in court with the plaintiffs on the federal pre-emption question at this time, she is confident the city could have prevailed.
“We continue to be confident that we have a good case on pre-emption,” Bassett said.