NY State Senate Bill 2009-S6438

Senate Bill S6438

2009-2010 Legislative Session

Relates to the posting of calorie content of food sold by retail food establishments and retail food service operations

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Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 11, 2010	referred to health

2009-S6438 (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §1351, add §1357, Pub Health L; amd §500, Ag & Mkts L

2009-S6438 (ACTIVE) - Summary

Relates to the posting of calorie content of food sold by retail food establishments and retail food service operations.

2009-S6438 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6438

 TITLE OF BILL :

An act to amend the public health law and the agriculture and markets
law, in relation to the posting of calorie content values for food
sold by retail food establishments and retail food service operations


 PURPOSE :

This bill will require the posting of calorie content values of food
purchased at food service establishments and food service operations
that are part of large chains, enabling consumers to make informed
nutritional choices.

 SUMMARY OF PROVISIONS :

Section 1 of this bill sets forth the bill's legislative intent.

Section 2 of the bill amends Public Health Law (PHL) § 1351 to provide
that places engaged in the preparation, sale or service of food for
and to the general public must permit inspectors access to their
facilities for the purpose of ascertaining whether the provisions of
new PHL § 1357 are being observed.

Section 3 of the bill adds a new Public Health Law (PHL) § 1357 to
require calorie posting in every "retail food establishment," defined
as any food service establishment or mobile food establishment, as
those terms are used by the State Sanitary Code (SSC), which prepares
and serves food at the retail level and is one of a group of 15 or
more retail food establishments doing business nationally that: (1)
offer substantially the same menu items; and (2) are franchises of the
same parent business, operate under common ownership or control, or do
business under the same name.

Section 3 further provides that for each item or combination of items
offered on an establishment's menu, the "calorie content value" must
be listed on the menu or menu board, adjacent to or in close proximity
to the applicable item on the menu or menu board and in a font, format
and size of equal prominence to the price or name of the item,
However, the bill does not apply to temporary menu items that appear
on the menu for less than 30 days in one calendar year, and does not
apply to condiments or similar items offered free of charge.  For
drive-through windows, calorie content values must be posted either on
the menu board used by customers for placing orders or on a stanchion
adjacent to such menu board.

Section 3 of the bill also provides that for menu items that come in
different flavors, varieties or combinations, the range of calorie
content values showing the minimum to maximum numbers of calories for
all such flavors, varieties and combinations must be posted. If an
item is displayed with a food item tag, which is a tag, label or
placard placed in close proximity to an item, the food item tag must
list the item's calorie content value in a font, format and size of
equal prominence to the name of the item.

Section 3 of the bill additionally provides that calorie content
values are to be based on a verifiable analysis of a food or menu
item, which may include the use of nutrient databases or laboratory
testing.  Documentation establishing the results of such analyses must
be maintained for as long as the item is offered for sale and for such
additional time as may be required by the Department of Health (DOH).
For alcoholic beverages, a retail food establishment may list an
average calorie content value per standard service for each type of

alcoholic beverage pursuant to regulations that will be promulgated by
DOH.

Section 3 of the bill further provides that retail food establishments
are not precluded from providing nutrition information in addition to
that required by the bill. Section 3 of the bill also provides that a
retail food establishment violates the new PHL § 1357 if it: (1) fails
to post calorie content values as required; (2) fails to obtain
calorie content value analyses and maintain documentation of such
analyses as required; or (3) knowingly or recklessly lists on menus,
menu boards or food item tags calorie content values that are
materially incorrect or misleading. Moreover, the bill permits
localities that meet its minimum requirements to impose additional,
more restrictive requirements.

Section 4 of the bill adds a new Agriculture and Markets Law (AML)
§500(7) to require calorie posting in every "retail food service
operation," meaning an area of a retail food store, as defined by AML.

§ 500(1)(b), which prepares and serves ready-to-eat food at the retail
level, whether consumption occurs on or off the premises, and is
within a group of 15 or more retail food stores that that do business
nationally. The stores within the group must be franchises of the same
parent business, operate under common ownership or control or do
business under the same name, and their retail food service operations
must all offer substantially the same menu items.

Section 4 further provides that for each item or combination of items
offered on a retail food service operation's menu, the "calorie
content value" must be listed on the menu or menu board, adjacent to
or in close proximity to the applicable item on the menu or menu board
and in a font, format and size of equal prominence to the price or
name of the item. However, the bill does not apply to temporary menu
items that appear on the menu for less than 30 days in one calendar
year, and does not apply to condiments or similar items offered free
of charge.

Section 4 of the bill also provides that for menu items that come in
different flavors, varieties or combinations, the range of calorie
content values showing the minimum to maximum numbers of calories for
all such flavors, varieties and combinations must be posted. If an
item is displayed with a food item tag, which is a tag, label or
placard placed in close proximity to an item, the food item tag must
list the item's calorie content value in a font, format and size of
equal prominence to the name of the item.

Section 4 of the bill additionally provides that calorie content
values are to be based on a verifiable analysis of a food or menu
item, which may include the use of nutrient databases or laboratory
testing.  Documentation establishing the results of such analyses must
be maintained for as long as the item is offered for sale and for such
additional time as may be required by the Agriculture and Markets
Department (A&M).

Section 4 of the bill further provides that retail food establishments
are not precluded from providing nutrition information in addition to
that required by the bill. Section 4 additionally provides that a
retail food service operation violates the new AML § 500(7) if it:
(1) fails to post calorie content values as required; (2) fails to
obtain calorie content value analyses and maintain documentation of
such analyses as required; or (3) knowingly or recklessly lists on
menus, menu boards or food item tags calorie content values that are
materially incorrect or misleading. Moreover, the bill permits
localities to impose additional, more restrictive requirements.


Section 5 of the bill provides that the bill would take effect
September 1, 2010, except that the Commissioner of Health and the
Commissioner of Agriculture and Markets may promulgate regulations, on
an emergency basis if necessary, prior to that date.

 EXISTING LAW :

PHL § 12 provides for monetary penalties for violations of the PHL or
any regulation promulgated thereunder, if no specific penalty is
otherwise provided, in an amount of up to $2,000 per violation or in
higher amounts in certain egregious situations.

PHL § 206(4) authorizes a penalty of up to $2,000 for a violation of
the PHL or any regulation promulgated thereunder.

PHL § 309(1)(f) authorizes local boards of health to impose penalties
for violations of the SSC.

PHL § 1350 authorizes the Commissioner of Health to inspect and
supervise all public places in New York in which food is prepared,
sold or served, although the Commissioner may designate persons to
conduct such inspections.

PHL § 1351 requires persons in charge of any place engaged in the
preparation, sale or service of food for and to the general public to
permit inspectors access to their facilities for the purpose of
ascertaining compliance with PHL §§ 1350 through 1353 and the SSC.

Part 14, Chapter I of the SSC, which appears at Title 10 of the New
York Codes, Rules and Regulations (NYCRR), governs food service
establishments and mobile food service establishments.

10 NYCRR § 14-1.20(a) defines a "food service establishment" as a
place where food is prepared and intended for individual portion
service, including the site at which the individual portions are
provided, whether consumption. occurs on or off the premises. The
definition does not include food processing establishments, retail
food stores, private homes, and food service operations where a
distinct group - such as a congregation, club or fraternal
organization mutually provides, prepares, serves and consumes the
food.

10 NYCRR § 14-1.190 provides that a permit must be issued by the
appropriate local health official before a food service establishment
can be operated.

10 NYCRR § 14-1.30 defines "food" as any edible substance, ice,
beverage or ingredient used or intended for use or for sale in whole
or in part for human consumption.

10 NYCRR § 14-4.30(a) defines a "mobile food service establishment" as
a self-contained food service operation, located in a vehicle or a
movable stand, self or otherwise propelled, used to store, prepare,
display or serve food intended for individual portion service.

14 NYCRR § 14-4.194 provides that a permit must be obtained before a
mobile food service establishment can be operated.

AML § 20 authorizes A&M to inspect all places of business used in the
manufacture, storage or sale of any article or product over which the
AML gives A&M authority.

AML § 39 provides that violations of the AML are subject to a penalty,
if no specific penalty is otherwise provided, of up to $300 for the
first violation and up to $600 for a second violation and each
subsequent violation.
AML § 40 provides that the violation of a Commissioner's order or a
departmental regulation by a person, association or corporation, or
the agent, officer or employee thereof, is subject to a penalty of up
to $200 for a first offense and a penalty of up to $400 for a second
violation and each subsequent violation.

AML § 198(1) defines "food" and "food product" as including all
articles of food, drink, confectionery or condiment, whether simple,
mixed or compound, used or intended for use by humans or animals, and
including all substances or ingredients to be added to food for any
purpose.

AML § 500(1) defines a "food service establishment" as a place where
food is prepared and intended for individual portion service, and
includes the site at which individual portions are provided, whether
consumption occurs on or off the premises, or whether or not there is
a charge for the food.

AML § 500(2) defines a "retail food store" as an establishment or
section of an establishment where food and food products are offered
to the consumer and intended for off premises consumption, not
including establishments which handle only pre-packaged, non
potentially hazardous foods, roadside markets that offer only fresh
fruits and fresh vegetables for sale, food service establishments, or
food and beverage vending machines.

AML § 500(4) requires A&M to inspect each retail food store at least
once in every 12 month period.

AML § 500(5) requires licensure of facilities operated as food service
establishments or retail food stores, unless such facilities are
otherwise under the jurisdiction of DOH or the United States
Department of Agriculture.

 JUSTIFICATION :

Increased caloric intake is a key factor contributing to the alarming
increase in obesity in the United States. According to the United
States Centers for Disease Control and Prevention, two-thirds of
American adults are overweight or obese, and the rates of obesity have
tripled in children and teens since 1980. Obesity increases the risk
of diabetes, heart disease, stroke, and other health problems.  In
addition, according to the Comptroller, medical expenses associated
with adult obesity costs New York State an estimated $6.1 billion a
year.

American adults and children consume, on average, one-third of their
calories from eating out. The average American eats out four meals a
week, and dining out has been linked to higher calorie consumption and
obesity. Children eat almost twice as many calories when eating in
restaurants compared to eating at home. Evidence shows that most
people find it difficult to guess the calorie counts of typical
restaurant meals and routinely underestimate such amounts. One study
showed that less than 15 percent of New Yorkers could guess the lowest
or highest calorie menu items at any chain restaurant in the survey.
Moreover, voluntary industry disclosure practices, such as posting
nutritional information online, on tray liners, or in brochures, is
inadequate; a study of New York City consumers showed that 95% of
diners do not see nutrition information provided in this way.

On the other hand, studies also show that consumers who see calorie
content values prior to ordering choose meals with fewer calories than
patrons who do not see calorie information. Significantly, one study
showed that in New York City, which has already implemented a calorie
posting requirement, fast food customers who saw calorie information
displayed purchased food with an average of 52 fewer calories than
customers who did not see the information. A study conducted in
California, which has also enacted menu labeling legislation,
estimates that if 80 percent of adult customers at fast food
restaurant reduce their caloric intake based on posted calorie
information, they could each avoid an average of more than two pounds
of weight gain per year. In addition, the New York City initiative is
expected to prevent at least 30,000 new cases of diabetes over the
next five years.

This bill requires large commercial chains of restaurants, mobile
vendors, supermarkets and convenience stores which offer standardized
menus for dining on or off the premises to list the calorie content
values of their menu items on their menus and menu boards, including
menu boards used by consumers for purposes of ordering food from their
cars at drive-through windows. This will provide consumers will access
to such information at the point of purchase, allowing them to make
informed choices and avoid confusion about what they consume. It is
expected that this will lead consumers to make more healthful choices
and reduce the prevalence of obesity, the incidence of obesity~related
illness and the associated public health costs.

 LEGISLATIVE HISTORY :

New bill.

 FISCAL IMPLICATIONS :

Because enforcement of the bill's provisions will occur as part of
regular inspections already conducted by DOH, city and county health
departments and A&M, the bill is not expected to have a fiscal impact
on the State or localities.

 EFFECTIVE DATE :
This bill would take effect September 1, 2010, except that the
Commissioner of Health and the Commissioner of Agriculture and Markets
may promulgate regulations, on an emergency basis if necessary, prior
to that date.

2009-S6438 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6438

                            I N  S E N A T E

                            January 11, 2010
                               ___________

Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law and the  agriculture  and  markets
  law,  in  relation  to  the posting of calorie content values for food
  sold by retail food establishments and retail food service operations

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative  intent.  The legislature finds that rates of
obesity in the state of New York have increased to epidemic proportions.
Obesity is associated with numerous health problems, including, but  not
limited  to, diabetes, heart disease, cancer, osteoarthritis and asthma,
and carries a great public health cost. On  average,  Americans  consume
one-third  of  their  calories  from dining away from home or purchasing
prepared meals to bring home, and there is evidence that consumers  find
it difficult to estimate the calorie counts of typical restaurant meals.
It  is  important to ensure that consumers are provided with information
sufficient to allow them to make informed decisions about  their  dining
choices.
  S  2.  Section  1351  of  the  public health law is amended to read as
follows:
  S 1351. Food places; duty to permit inspections. Every  owner,  opera-
tor, lessor, lessee or person in charge of any hotel, restaurant, dining
room,  dining  car,  drug store, soda fountain, steamboat or other place
engaged in the preparation, sale or service  of  food  for  and  to  the
general  public,  and  every  officer  or  other person in charge of any
public, penal or charitable institution in this state, shall permit  the
commissioner  or  his duly authorized agents or employees to have access
to all parts of any and all of such places herein mentioned wherein food
is stored, prepared or served for the purpose  of  ascertaining  whether
the  provisions  of  sections thirteen hundred fifty to thirteen hundred
fifty-two, inclusive, AND SECTION THIRTEEN HUNDRED FIFTY-SEVEN  of  this
[chapter]   ARTICLE,  and  the  provisions  of  the  sanitary  code  and
provisions of local ordinances or regulations are being observed.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15353-01-0

S. 6438                             2

  S 3. The public health law is amended by adding a new section 1357  to
read as follows:
  S 1357. RETAIL FOOD ESTABLISHMENTS; POSTING OF CALORIE CONTENT VALUES.
1.  WHENEVER  USED IN THIS SECTION, UNLESS OTHERWISE EXPRESSLY STATED OR
UNLESS THE CONTEXT OR SUBJECT MATTER REQUIRES A DIFFERENT  MEANING,  THE
FOLLOWING  TERMS  SHALL HAVE THE MEANINGS HEREINAFTER SET FORTH OR INDI-
CATED:
  (A) "RETAIL FOOD ESTABLISHMENT" MEANS ANY FOOD  SERVICE  ESTABLISHMENT
OR  MOBILE  FOOD SERVICE ESTABLISHMENT, AS DEFINED BY THE STATE SANITARY
CODE, WHICH IS USED OR OPERATED FOR THE PURPOSE OF PREPARING AND SERVING
FOOD AT THE RETAIL LEVEL, AND IS ONE OF  A  GROUP  OF  FIFTEEN  OR  MORE
RETAIL  FOOD  ESTABLISHMENTS  DOING BUSINESS NATIONALLY THAT:  (I) OFFER
FOR SALE SUBSTANTIALLY THE SAME MENU ITEMS, IN SERVINGS THAT ARE  STAND-
ARDIZED  FOR  PORTION  SIZE  AND  CONTENT; AND (II) OPERATE UNDER COMMON
OWNERSHIP OR CONTROL, OPERATE AS FRANCHISED OUTLETS OF  A  PARENT  BUSI-
NESS, OR DO BUSINESS UNDER THE SAME NAME.
  (B)  "FOOD  ITEM" MEANS A FOOD, AS DEFINED BY THE STATE SANITARY CODE,
WHICH IS OFFERED FOR SALE BY A RETAIL FOOD ESTABLISHMENT IN STANDARDIZED
SIZES AND INTENDED FOR INDIVIDUAL PORTION SERVICE.
  (C) "MENU" MEANS A PRINTED LIST OR PRINTED PICTORIAL DISPLAY  OF  FOOD
ITEMS  AND  THEIR  PRICES THAT ARE AVAILABLE FOR SALE FROM A RETAIL FOOD
ESTABLISHMENT, AND SHALL INCLUDE MENUS DISTRIBUTED OR  PROVIDED  OUTSIDE
OF THE ESTABLISHMENT.
  (D)  "MENU  BOARD"  SHALL  MEAN  ANY LIST OR PICTORIAL DISPLAY OF FOOD
ITEMS AND THEIR PRICES THAT IS POSTED AND VISIBLE: (I) WITHIN  A  RETAIL
FOOD  SERVICE ESTABLISHMENT, OR (II) OUTSIDE OF A RETAIL FOOD ESTABLISH-
MENT FOR THE USE OF  CUSTOMERS  IN  ORDERING  FROM  THE  ESTABLISHMENT'S
DRIVE-THROUGH.
  (E) "MENU ITEM" SHALL MEAN ANY INDIVIDUAL FOOD ITEM, OR COMBINATION OF
FOOD ITEMS, THAT IS LISTED OR DISPLAYED ON A RETAIL FOOD ESTABLISHMENT'S
MENU OR MENU BOARD. THIS TERM DOES NOT INCLUDE: (I) TEMPORARY ITEMS THAT
ARE  LISTED  ON  A  MENU  OR MENU BOARD FOR LESS THAN THIRTY DAYS IN ONE
CALENDAR YEAR; OR (II) CONDIMENTS AND SIMILAR ITEMS PLACED ON A TABLE OR
COUNTER FOR GENERAL USE OR OTHERWISE PROVIDED WITHOUT CHARGE.
  (F) "CALORIE CONTENT VALUE" MEANS THE NUMBER OF  CALORIES  IN  A  FOOD
ITEM  OR MENU ITEM IN THE SIZE AND PORTION NORMALLY OFFERED FOR SALE, AS
DETERMINED PURSUANT TO A METHOD THAT COMPLIES WITH SUBDIVISION  FIVE  OF
THIS SECTION.
  (G)  "DRIVE-THROUGH" MEANS AN AREA WHERE A CUSTOMER MAY PLACE AN ORDER
FOR AND RECEIVE MENU ITEMS WHILE OCCUPYING A MOTOR VEHICLE.
  (H) "FOOD ITEM TAG" MEANS A TAG, LABEL  OR  PLACARD  PLACED  IN  CLOSE
PROXIMITY  TO A FOOD ITEM DISPLAYED FOR SALE BY A RETAIL FOOD ESTABLISH-
MENT THAT IDENTIFIES THE ITEM.
  2. (A) FOR EACH MENU ITEM OFFERED FOR SALE BY A RETAIL FOOD ESTABLISH-
MENT, THE TOTAL CALORIE CONTENT VALUE OF SUCH ITEM AS OFFERED  FOR  SALE
SHALL  BE  LISTED  ON  ALL OF THE ESTABLISHMENT'S MENUS AND MENU BOARDS.
SUCH CALORIE CONTENT VALUE SHALL BE LISTED  CLEARLY  AND  CONSPICUOUSLY,
ADJACENT TO OR IN CLOSE PROXIMITY TO THE APPLICABLE MENU ITEM SO THAT IT
IS  CLEARLY  ASSOCIATED WITH SUCH ITEM, AND IN A FONT AND FORMAT THAT IS
AT LEAST AS PROMINENT, IN SIZE AND APPEARANCE,  AS  THAT  USED  TO  POST
EITHER THE NAME OR PRICE OF THE MENU ITEM.
  (B) CALORIE CONTENT VALUES AT DRIVE-THROUGH WINDOWS SHALL BE DISPLAYED
ON  EITHER THE DRIVE-THROUGH MENU BOARD OR A STANCHION, ADJACENT TO SUCH
MENU BOARD, WHICH IS VISIBLE TO CUSTOMERS AT OR PRIOR TO  THE  POINT  OF
ORDERING,  SO  LONG  AS  THE  CALORIE CONTENT VALUE OF EACH MENU ITEM IS
LISTED CLEARLY AND CONSPICUOUSLY, ADJACENT TO OR IN CLOSE  PROXIMITY  TO

S. 6438                             3

THE  APPLICABLE  MENU  ITEM  SO  THAT IT IS CLEARLY ASSOCIATED WITH SUCH
ITEM, AND IN A FONT AND FORMAT THAT IS AT LEAST AS  PROMINENT,  IN  SIZE
AND  APPEARANCE,  AS  THAT  USED TO POST EITHER THE NAME OR PRICE OF THE
MENU ITEM ON THE MENU BOARD.
  (C) FOR MENU ITEMS OFFERED FOR SALE IN DIFFERENT FLAVORS OR VARIETIES,
THE  RANGE  OF  CALORIE  CONTENT  VALUES  SHOWING THE MINIMUM TO MAXIMUM
NUMBERS OF CALORIES FOR ALL FLAVORS AND VARIETIES OF THAT ITEM SHALL  BE
LISTED FOR EACH SIZE OFFERED FOR SALE ON MENUS AND MENU BOARDS.
  (D)  FOR  COMBINATIONS OF DIFFERENT FOOD ITEMS LISTED OR PICTURED AS A
SINGLE MENU ITEM, THE RANGE OF CALORIE CONTENT VALUES SHOWING THE  MINI-
MUM  TO  MAXIMUM  NUMBERS  OF CALORIES FOR ALL COMBINATIONS OF THAT MENU
ITEM SHALL BE LISTED ON MENUS AND MENU BOARDS.  IF  THERE  IS  ONLY  ONE
POSSIBLE  CALORIE  TOTAL  FOR  THE COMBINATION, THEN THAT TOTAL SHALL BE
LISTED ON MENUS AND MENU BOARDS.
  (E) WHEN A FOOD ITEM IS DISPLAYED FOR SALE WITH A FOOD ITEM TAG,  SUCH
FOOD ITEM TAG SHALL INCLUDE THE CALORIE CONTENT VALUE FOR THAT FOOD ITEM
IN  A FONT AND FORMAT THAT IS AT LEAST AS PROMINENT, IN SIZE AND APPEAR-
ANCE, AS THAT USED TO IDENTIFY THE ITEM.
  (F) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBDIVISION, THE CALO-
RIE CONTENT VALUE OF AN ALCOHOLIC BEVERAGE OFFERED FOR SALE BY A  RETAIL
FOOD  ESTABLISHMENT  SHALL  BE  LISTED  AS  REQUIRED BY PARAGRAPH (B) OF
SUBDIVISION THREE OF THIS SECTION.
  3. (A) CALORIE CONTENT VALUES (IN KCAL) REQUIRED BY THIS SECTION SHALL
BE BASED UPON A VERIFIABLE ANALYSIS OF A FOOD OR MENU  ITEM,  WHICH  MAY
INCLUDE  THE  USE  OF  NUTRIENT  DATABASES, LABORATORY TESTING, OR OTHER
RELIABLE METHODS OF ANALYSIS, AND SHALL BE ROUNDED TO  THE  NEAREST  TEN
CALORIES  FOR  CALORIE  CONTENT  VALUES  ABOVE FIFTY CALORIES AND TO THE
NEAREST FIVE CALORIES FOR CALORIE CONTENT VALUES OF FIFTY  CALORIES  AND
BELOW.
  (B)  IN  LIEU  OF  LISTING  A CALORIE CONTENT VALUE FOR EACH ALCOHOLIC
BEVERAGE OFFERED FOR SALE, A RETAIL FOOD ESTABLISHMENT MAY LIST AN AVER-
AGE CALORIE CONTENT VALUE PER STANDARD SERVING FOR EACH TYPE OF ALCOHOL-
IC BEVERAGE OFFERED FOR SALE BY THE ESTABLISHMENT,  ACCORDING  TO  REGU-
LATIONS OF THE DEPARTMENT.
  4.  DOCUMENTATION  ESTABLISHING  THE RESULTS OF ANY ANALYSIS CONDUCTED
PURSUANT TO PARAGRAPH (A) OF SUBDIVISION THREE OF  THIS  SECTION  FOR  A
FOOD  OR  MENU ITEM SHALL BE MAINTAINED BY THE ESTABLISHMENT FOR AS LONG
AS THAT ITEM IS OFFERED FOR SALE AND FOR SUCH ADDITIONAL TIME AS MAY  BE
DEFINED BY THE DEPARTMENT AND IN THE MANNER SPECIFIED BY THE DEPARTMENT.
  5.  NOTHING IN THIS SECTION SHALL PRECLUDE A RETAIL FOOD ESTABLISHMENT
FROM PROVIDING NUTRITION INFORMATION IN ADDITION TO THAT REQUIRED  UNDER
THIS SECTION.
  6. A RETAIL FOOD ESTABLISHMENT VIOLATES THE PROVISIONS OF THIS SECTION
IF  THE  ESTABLISHMENT:    (A)  FAILS  TO LIST CALORIE CONTENT VALUES AS
REQUIRED BY THIS SECTION; (B) FAILS  TO  OBTAIN  CALORIE  CONTENT  VALUE
ANALYSES AND MAINTAIN DOCUMENTATION OF SUCH ANALYSES AS REQUIRED BY THIS
SECTION;  OR  (C) KNOWINGLY OR RECKLESSLY LISTS ON MENUS, MENU BOARDS OR
FOOD ITEM TAGS CALORIE CONTENT VALUES THAT ARE MATERIALLY  INCORRECT  OR
MISLEADING.
  7.  NOTHING  IN  THIS SECTION SHALL BE CONSTRUED TO PROHIBIT A MUNICI-
PALITY OR OTHER UNIT OF LOCAL GOVERNMENT FROM ENACTING, AMENDING,  MODI-
FYING  OR  REPEALING  A LOCAL LAW, ORDINANCE, OR RESOLUTION THAT IMPOSES
STRICTER CALORIE OR MORE INCLUSIVE NUTRIENT LISTING OR POSTING  REQUIRE-
MENTS  ON  RETAIL  FOOD  ESTABLISHMENTS UNDER ITS JURISDICTION, PROVIDED
THAT THE MINIMUM REQUIREMENTS OF THIS SECTION ARE MET.

S. 6438                             4

  S 4. Section 500 of the agriculture and  markets  law  is  amended  by
adding a new subdivision 6 to read as follows:
  6.  (A)  WHENEVER USED IN THIS SUBDIVISION, UNLESS OTHERWISE EXPRESSLY
STATED OR UNLESS THE CONTEXT OR  SUBJECT  MATTER  REQUIRES  A  DIFFERENT
MEANING,  THE  FOLLOWING  TERMS  SHALL HAVE THE MEANINGS HEREINAFTER SET
FORTH OR INDICATED:
  (I) "RETAIL FOOD SERVICE OPERATION" MEANS AN AREA  OF  A  RETAIL  FOOD
STORE,  AS  DEFINED BY PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION:
(A) WHERE FOOD IS PREPARED FOR SALE AT THE RETAIL LEVEL IN READY-TO-EAT,
INDIVIDUAL PORTIONS FOR CONSUMPTION ON OR OFF THE PREMISES; (B) WHICH IS
LOCATED WITHIN A RETAIL FOOD STORE THAT IS ONE OF A GROUP OF FIFTEEN  OR
MORE  RETAIL  FOOD  STORES DOING BUSINESS NATIONALLY AND OPERATING UNDER
COMMON OWNERSHIP OR CONTROL, OPERATING AS FRANCHISED OUTLETS OF A PARENT
BUSINESS, OR DOING BUSINESS UNDER THE SAME NAME; AND  (C)  WHICH  OFFERS
SUBSTANTIALLY  THE SAME MENU ITEMS AS ARE OFFERED IN SIMILAR AREAS OF AT
LEAST FOURTEEN OTHER RETAIL FOOD STORES CONTAINED IN THE GROUP DESCRIBED
IN CLAUSE (B) OF THIS SUBPARAGRAPH.
  (II) "FOOD ITEM" MEANS A FOOD, AS DEFINED BY SECTION ONE HUNDRED NINE-
TY-EIGHT OF THIS CHAPTER, WHICH IS OFFERED FOR SALE  BY  A  RETAIL  FOOD
SERVICE  OPERATION  IN  STANDARDIZED  SIZES  AND INTENDED FOR INDIVIDUAL
PORTION SERVICE.
  (III) "MENU" MEANS A PRINTED LIST OR PRINTED PICTORIAL DISPLAY OF FOOD
ITEMS AND THEIR PRICES THAT ARE AVAILABLE FOR SALE FROM  A  RETAIL  FOOD
ESTABLISHMENT,  AND  SHALL INCLUDE MENUS DISTRIBUTED OR PROVIDED OUTSIDE
OF THE ESTABLISHMENT.
  (IV) "MENU BOARD" SHALL MEAN ANY LIST OR  PICTORIAL  DISPLAY  OF  FOOD
ITEMS  AND  THEIR PRICES THAT IS POSTED AND VISIBLE WITHIN A RETAIL FOOD
SERVICE OPERATION.
  (V) "MENU ITEM" SHALL MEAN ANY INDIVIDUAL FOOD ITEM, OR COMBINATION OF
FOOD ITEMS, THAT IS LISTED OR DISPLAYED ON A RETAIL FOOD  SERVICE  OPER-
ATION'S  MENU  OR  MENU BOARD. THIS TERM DOES NOT INCLUDE: (A) TEMPORARY
ITEMS THAT ARE LISTED ON A MENU OR MENU BOARD FOR LESS THAN THIRTY  DAYS
IN  ONE  CALENDAR  YEAR; OR (B) CONDIMENTS AND SIMILAR ITEMS PLACED ON A
TABLE OR COUNTER FOR GENERAL USE OR OTHERWISE PROVIDED WITHOUT CHARGE.
  (VI) "CALORIE CONTENT VALUE" MEANS THE NUMBER OF CALORIES  IN  A  FOOD
ITEM  OR MENU ITEM IN THE SIZE AND PORTION NORMALLY OFFERED FOR SALE, AS
DETERMINED PURSUANT TO A METHOD THAT COMPLIES WITH PARAGRAPH (E) OF THIS
SUBDIVISION.
  (VII) "FOOD ITEM TAG" MEANS A TAG, LABEL OR PLACARD  PLACED  IN  CLOSE
PROXIMITY  TO  A  FOOD  ITEM DISPLAYED FOR SALE BY A RETAIL FOOD SERVICE
OPERATION THAT IDENTIFIES THE ITEM.
  (B) (I) FOR EACH MENU ITEM OFFERED FOR SALE BY A RETAIL  FOOD  SERVICE
OPERATION,  THE  TOTAL CALORIE CONTENT VALUE OF SUCH ITEM AS OFFERED FOR
SALE SHALL BE LISTED ON ALL OF THE OPERATION'S MENUS  AND  MENU  BOARDS.
SUCH  CALORIE  CONTENT  VALUE SHALL BE LISTED CLEARLY AND CONSPICUOUSLY,
ADJACENT TO OR IN CLOSE PROXIMITY TO THE APPLICABLE MENU ITEM SO THAT IT
IS CLEARLY ASSOCIATED WITH SUCH ITEM, AND IN A FONT AND FORMAT  THAT  IS
AT  LEAST  AS  PROMINENT,  IN  SIZE AND APPEARANCE, AS THAT USED TO POST
EITHER THE NAME OR PRICE OF THE MENU ITEM.
  (II) FOR MENU ITEMS OFFERED FOR SALE IN DIFFERENT  FLAVORS  OR  VARIE-
TIES, THE RANGE OF CALORIE CONTENT VALUES SHOWING THE MINIMUM TO MAXIMUM
NUMBERS  OF CALORIES FOR ALL FLAVORS AND VARIETIES OF THAT ITEM SHALL BE
LISTED FOR EACH SIZE OFFERED FOR SALE ON MENUS AND MENU BOARDS.
  (III) FOR COMBINATIONS OF DIFFERENT FOOD ITEMS LISTED OR PICTURED AS A
SINGLE MENU ITEM, THE RANGE OF CALORIE CONTENT VALUES SHOWING THE  MINI-
MUM  TO  MAXIMUM  NUMBERS  OF CALORIES FOR ALL COMBINATIONS OF THAT MENU

S. 6438                             5

ITEM SHALL BE LISTED ON MENUS AND MENU BOARDS.  IF  THERE  IS  ONLY  ONE
POSSIBLE  CALORIE  TOTAL  FOR  THE COMBINATION, THEN THAT TOTAL SHALL BE
LISTED ON MENUS AND MENU BOARDS.
  (IV) WHEN A FOOD ITEM IS DISPLAYED FOR SALE WITH A FOOD ITEM TAG, SUCH
FOOD ITEM TAG SHALL INCLUDE THE CALORIE CONTENT VALUE FOR THAT FOOD ITEM
IN  A FONT AND FORMAT THAT IS AT LEAST AS PROMINENT, IN SIZE AND APPEAR-
ANCE, AS THAT USED TO IDENTIFY THE ITEM.
  (C) CALORIE CONTENT VALUES (IN  KCAL)  REQUIRED  BY  THIS  SUBDIVISION
SHALL  BE BASED UPON A VERIFIABLE ANALYSIS OF A FOOD OR MENU ITEM, WHICH
MAY INCLUDE THE USE OF NUTRIENT DATABASES, LABORATORY TESTING, OR  OTHER
RELIABLE  METHODS  OF  ANALYSIS, AND SHALL BE ROUNDED TO THE NEAREST TEN
CALORIES FOR CALORIE CONTENT VALUES ABOVE  FIFTY  CALORIES  AND  TO  THE
NEAREST  FIVE  CALORIES FOR CALORIE CONTENT VALUES OF FIFTY CALORIES AND
BELOW.
  (D) DOCUMENTATION ESTABLISHING THE RESULTS OF ANY  ANALYSIS  CONDUCTED
PURSUANT  TO  PARAGRAPH  (C) OF THIS SUBDIVISION FOR A FOOD OR MENU ITEM
SHALL BE MAINTAINED BY THE RETAIL FOOD SERVICE OPERATION FOR AS LONG  AS
THAT  ITEM  IS  OFFERED  FOR SALE AND FOR SUCH ADDITIONAL TIME AS MAY BE
DEFINED BY THE DEPARTMENT AND IN THE MANNER SPECIFIED BY THE DEPARTMENT.
  (E) NOTHING IN THIS SUBDIVISION SHALL PRECLUDE A RETAIL  FOOD  SERVICE
OPERATION  FROM  PROVIDING  NUTRITION  INFORMATION  IN  ADDITION TO THAT
REQUIRED UNDER THIS SUBDIVISION.
  (F) A RETAIL FOOD SERVICE OPERATION VIOLATES THE  PROVISIONS  OF  THIS
SUBDIVISION  IF  THE OPERATION: (I) FAILS TO POST CALORIE CONTENT VALUES
AS REQUIRED BY THIS SUBDIVISION; (II) FAILS TO  OBTAIN  CALORIE  CONTENT
VALUE  ANALYSES  AND MAINTAIN DOCUMENTATION OF SUCH ANALYSES AS REQUIRED
BY THIS SUBDIVISION; OR (III) KNOWINGLY OR RECKLESSLY  LISTS  ON  MENUS,
MENU BOARDS OR FOOD ITEM TAGS CALORIE CONTENT VALUES THAT ARE MATERIALLY
INCORRECT OR MISLEADING.
  S  5.  This  act  shall take effect September 1, 2010, except that the
commissioner of health and the commissioner of agriculture  and  markets
are  authorized  to  adopt,  amend  or  repeal, on an emergency basis if
necessary, any regulation necessary to implement any provision  of  this
act on its effective date.

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