Facing a lawsuit from the food industry and pressure from FDA, the City of New York agreed on Friday to not enforce menu-labeling requirements against many restaurants, convenience stores, and other retail food establishments until May 7, 2018 (see FDA turns page on restaurant menu labeling back another year, May 3, 2017). The move aligns the City’s enforcement timeline with FDA’s nationwide compliance date and marks a reversal for the City, which previously announced that it would issue fines and notices of violation beginning on August 21, 2017.
The policy change was the result of a legal challenge brought by food industry trade groups who argued that the City’s early enforcement of its own regulations was unlawful. As we previously reported here, the federal Food, Drug, and Cosmetic Act, which establishes national menu labeling requirements (see Patient Protection and Affordable Care Act (P.L. 111-148), Sec. 4205), permits local menu labeling rules that are identical to the federal requirements. The City has said that its menu labeling rules are substantively identical to the federal statutory and regulatory requirements. But in a motion for preliminary injunction against the City, the plaintiffs (National Association of Convenience Stores, New York Association of Convenience Stores, Food Marketing Institute, and National Restaurant Association) argued that the City’s imposition of an earlier compliance date would be an additional, non-identical obligation. Therefore, plaintiffs argued, the City was preempted from early enforcement.
Though not a party to the lawsuit, the FDA weighed in and agreed with the plaintiffs in a Statement of Interest filed with the court on August 14: "Acknowledging that the federal requirements have come into effect, the City asserts that it is not bound by the terms of one of those requirements, the date of compliance. Because the governing statutory and regulatory framework established by the Act expressly preempts the City from making such a unilateral determination, the City should not be allowed to begin enforcement of [its menu labeling requirements] in advance of the FDA’s national compliance date."
Copyright ©2017 Hyman, Phelps & McNamara, PC Published with permission.
Attorneys: Etan J. Yeshua (Hyman, Phelps & McNamara, PC).
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