Hard to swallow
City’s calorie-posting rules take hit from feds
THE CITY should slow down when it comes to listing calories in fast food, the federal Food and Drug Administration argued in court documents filed this week.
The agency filed a “statement of interest” in a lawsuit brought by trade groups against the city’s Health Department, which in May expanded its calorie-count rules to convenience stores, groceries and other food chains serving prepared or “restaurantstyle” food.
The city took that action after the FDA delayed its own plans to implement the same rules nationwide three times.
“Though chain restaurants in New York City have been providing this information for nearly 10 years, and federal disclosure requirements have been in effect since 2010, the FDA has taken the position that chains can stop providing customers with critical nutrition information,” said Dr. Mary Bassett, the city’s health commissioner.
But the FDA is arguing that the city cannot legally preempt the proposed federal rules, which will not be enforced until at least May 7 — the date set when the FDA postponed the rules for the third time in May. That prompted the city to say it would start enforcing its own rules on Aug. 21. The rules were originally drafted under former President Barack Obama, and some are skeptical they will ever be enacted under President Trump.
The FDA — which in a statement said it intends to “fully implement” the policy after addressing “outstanding implementation questions” — laid out its argument in a motion filed as part of a suit against the city from the National Association of Convenience Stores and other trade groups. The city, meanwhile, has filed a motion to dismiss.
The law setting up those national standards includes a “preemption provision,” the FDA argued, aimed at creating a uniform standard — and which bars a municipality from enacting any calorie count requirements that are not identical.
The substance of the city’s rules is exactly the same as the FDA has proposed — the city actually proposed them first, in 2015, and held off enforcement in anticipation of the federal rule. But the FDA argued in court documents that the city’s requirements are not “identical” — because they were being enforced earlier.
But the city has long been ahead of the FDA when it comes to calorie counts. It has required them for chain restaurants like McDonald’s or Applebee’s since 2007.