S T A T E O F N E W Y O R K
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2720--A
Cal. No. 442
2009-2010 Regular Sessions
I N A S S E M B L Y
January 21, 2009
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Introduced by M. of A. ORTIZ, GOTTFRIED, COOK, P. RIVERA, MAYERSOHN,
GABRYSZAK, KOON, GALEF, CHRISTENSEN, FIELDS, BOYLAND, PAULIN, BARRON
-- Multi-Sponsored by -- M. of A. BRENNAN, CLARK, DINOWITZ, GLICK,
HOOPER, JACOBS, LATIMER, LAVINE, MAISEL, McENENY, MILLMAN, PHEFFER,
J. RIVERA, ROSENTHAL, TOWNS, WEISENBERG -- read once and referred to
the Committee on Health -- reported from committee, advanced to a
third reading, amended and ordered reprinted, retaining its place on
the order of third reading
AN ACT to amend the public health law, in relation to the posting of
caloric value of food items
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The public health law is amended by adding a new section
1352-d to read as follows:
S 1352-D. CALORIC VALUE. 1. THE COMMISSIONER IS AUTHORIZED AND
DIRECTED TO PROMULGATE RULES AND REGULATIONS REQUIRING CHAIN RESTAURANTS
OR FOOD SERVICE ESTABLISHMENTS SUBJECT TO THE PROVISIONS OF SECTION
THIRTEEN HUNDRED FIFTY-ONE OF THIS TITLE TO POST CALORIE CONTENT VALUES
FOR MENU ITEMS AS USUALLY PREPARED AND OFFERED FOR SALE ON STANDARD
PRINTED MENUS AND MENU BOARDS OR FOOD ITEMS AS USUALLY PREPARED AND
OFFERED FOR SALE THAT ARE IDENTIFIED BY TAGS OR LABELS PLACED IN CLOSE
PROXIMITY TO SUCH FOOD ITEMS DISPLAYED FOR SALE. THE RULES AND REGU-
LATIONS SHALL REQUIRE SUCH CHAIN RESTAURANTS AND FOOD SERVICE ESTABLISH-
MENTS TO POST THE NUMBER OF CALORIES PER MENU ITEM ADJACENT TO SUCH MENU
ITEMS ON MENU BOARDS AND MENUS, AND ON FOOD ITEM TAGS. SUCH INFORMATION
SHALL BE LISTED CLEARLY AND CONSPICUOUSLY, ADJACENT TO OR IN CLOSE PROX-
IMITY TO THE APPLICABLE MENU OR FOOD ITEM SO THAT IT IS CLEARLY ASSOCI-
ATED WITH SUCH ITEM, AND IN A FONT AND FORMAT THAT IS AT LEAST AS PROMI-
NENT, IN SIZE AND APPEARANCE, AS THAT USED TO POST EITHER THE NAME OR
PRICE OF THE MENU ITEM, AND TO POST THE RANGE OF CALORIE VALUES SHOWING
THE MINIMUM TO MAXIMUM NUMBERS OF CALORIES FOR ALL FLAVORS OR VARIETIES
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
A LBD01896-04-9
A. 2720--A 2
THAT ARE LISTED AS A SINGLE MENU ITEM. FOR COMBINATIONS OF DIFFERENT
FOOD ITEMS LISTED OR PICTURED AS A SINGLE MENU ITEM, THE RANGE OF CALO-
RIE CONTENT VALUES SHOWING THE MINIMUM 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. THE COMMIS-
SIONER SHALL DEVELOP REGULATIONS FOR THE POSTING OF CALORIE CONTENT
VALUE INFORMATION PER SERVING FOR MENU ITEMS THAT ARE CLEARLY INTENDED
FOR SERVING MORE THAN ONE INDIVIDUAL. CALORIE CONTENT VALUES AT DRIVE-
THROUGH WINDOWS SHALL BE DISPLAYED ON EITHER THE DRIVE-THROUGH MENU
BOARD, OR ON AN ADJACENT STANCHION VISIBLE AT, OR PRIOR TO THE POINT OF
ORDERING, SO LONG AS THE CALORIE CONTENT VALUES ARE AS CLEARLY AND
CONSPICUOUSLY POSTED ON THE STANCHION ADJACENT TO THEIR RESPECTIVE MENU
ITEM NAMES, AS THE PRICE OR MENU ITEM IS ON THE DRIVE-THROUGH MENU
BOARD. THE COMMISSIONER SHALL DEVELOP REGULATIONS TO PROVIDE A TEMPORARY
WAIVER OF THE PROVISIONS OF THIS SECTION FOR POSTING CALORIE CONTENT
VALUES ON A MENU BOARD OR STANCHION FOR A CHAIN RESTAURANT OR FOOD
SERVICE ESTABLISHMENT THAT IS IN THE PROCESS OF SEEKING APPROVAL FROM A
CITY, TOWN OR VILLAGE FOR CONSTRUCTION OF SUCH STANCHIONS. THIS SECTION
SHALL NOT APPLY TO MENU ITEMS LISTED OR FOOD ITEMS DISPLAYED FOR LESS
THAN THIRTY DAYS IN ONE CALENDAR YEAR. NOTHING IN THIS SECTION SHALL
PROHIBIT ANY RESTAURANT OR FOOD ESTABLISHMENT FROM PROVIDING ADDITIONAL
NUTRITIONAL INFORMATION FOR MENU ITEMS OR A DISCLAIMER THAT THERE MAY BE
VARIATIONS IN ACTUAL CALORIE CONTENT BECAUSE OF VARIABILITY IN FACTORS
SUCH AS INGREDIENTS, ACTUAL SERVING SIZES AND CUSTOMER ORDERING PREFER-
ENCES.
2. AS USED IN THIS SECTION "CHAIN RESTAURANT OR FOOD SERVICE ESTAB-
LISHMENT" SHALL MEAN A RESTAURANT OR FOOD ESTABLISHMENT SUBJECT TO THE
PROVISIONS OF SECTION THIRTEEN HUNDRED FIFTY-ONE OF THIS TITLE ENGAGED
IN THE PREPARATION, SERVING AND SALE OF FOOD OR BEVERAGES OR MEALS WITH
STANDARDIZED PREPARATION, PORTION SIZES AND CONTENT INTENDED FOR PUBLIC
CONSUMPTION, REGARDLESS OF WHETHER CONSUMPTION TAKES PLACE ON OR OFF THE
PREMISES, THAT IS ONE OF AT LEAST FIFTEEN SUCH RESTAURANTS OR ESTABLISH-
MENTS DOING BUSINESS NATIONALLY AND OPERATING UNDER COMMON OWNERSHIP OR
CONTROL, OR AS FRANCHISED OUTLETS OF A PARENT BUSINESS OR DOING BUSINESS
UNDER THE SAME TRADE NAME AND OFFERING PREDOMINANTLY THE SAME MENU ITEMS
ON THE SAME MENUS OR MENU BOARDS OR FOOD ITEMS WITH FOOD ITEM TAGS OR
LABELS. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO FOOD ESTAB-
LISHMENTS THAT ARE LICENSED UNDER ARTICLE TWENTY-C OF THE AGRICULTURE
AND MARKETS LAW EXCEPT FOR SECTIONS WITHIN SUCH LICENSED ESTABLISHMENTS
THAT HAVE BEEN DETERMINED BY THE COMMISSIONER TO BE CHAIN RESTAURANTS OR
FOOD SERVICE ESTABLISHMENTS AS DEFINED IN THIS SECTION.
3. FOR PURPOSES OF THIS SECTION, THE COMMISSIONER OR HIS DULY AUTHOR-
IZED AGENTS OR EMPLOYEES WHO INSPECT RESTAURANTS AND FOOD SERVICE ESTAB-
LISHMENTS SHALL ONLY BE REQUIRED TO DETERMINE THAT THE CALORIE CONTENT
VALUE LISTINGS REQUIRED UNDER THIS SECTION ARE LISTED ON THE MENU OR
MENU BOARD. SUCH INSPECTORS SHALL NOT BE REQUIRED TO VERIFY THE ACCURACY
OF THE LISTINGS BUT THE COMMISSIONER MAY REQUEST THAT CHAIN RESTAURANTS
AND FOOD SERVICE ESTABLISHMENTS PROVIDE DOCUMENTATION OF THE ACCURACY.
THE COMMISSIONER SHALL DEVELOP REGULATIONS FOR SUCH RESTAURANTS AND FOOD
SERVICE ESTABLISHMENTS TO DETERMINE SUCH CALORIE CONTENT VALUES USING
ANALYSIS SUCH AS NUTRIENT DATABASES, LABORATORY TESTING OR OTHER ACCEPT-
ABLE METHODS OF ANALYSIS. NOTWITHSTANDING THE PROVISIONS OF SECTION
THIRTEEN HUNDRED FIFTY-THREE OF THIS TITLE, THE PENALTY FOR A VIOLATION
OF THIS SECTION SHALL BE LIMITED TO THE PENALTY SET FORTH IN SECTION
TWELVE OF THIS CHAPTER.
A. 2720--A 3
THE PROVISIONS OF THIS SECTION SHALL PREEMPT THE AUTHORITY OF ANY
COUNTY, CITY, TOWN OR VILLAGE TO ADOPT AND ENFORCE ADDITIONAL LOCAL
LAWS, ORDINANCES OR REGULATIONS THAT ARE MORE STRINGENT THAN THE STAND-
ARDS SET FORTH IN THIS SECTION AND THE RULES AND REGULATIONS PROMULGATED
PURSUANT THERETO, INCLUDING LOCAL LAWS, ORDINANCES OR REGULATIONS
REQUIRING NUTRITION INFORMATION POSTING ON MENUS OR MENU BOARDS OR FOOD
ITEM TAGS.
S 2. This act shall take effect one year after it shall have become a
law; provided, however, that effective immediately the commissioner of
health is authorized and directed to promulgate any rule or regulation
or to take any other necessary action to ensure the timely implementa-
tion of this act on its effective date, and provided, further, that the
commissioner of health shall consult with nutrition and health profes-
sionals, representatives of restaurants or food service establishments,
and consumers prior to promulgating any such rule or regulation.