Senate Bill S4489

                                 BILL NUMBER:  S4489

 TITLE OF BILL :

An act to amend the public health law and the agriculture and markets
law, in relation to prohibiting the sale or use of artificial trans
fats in food service establishments, mobile food service
establishments and retail food stores


 PURPOSE :

This bill prohibits the storage, use and sale of artificial trans fats
in certain food establishments and retail stores as a public health
measure.

 SUMMARY OF PROVISIONS :

Section 1 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 § 1356 are being observed.

Section 2 of the bill adds a new PHL § 1356 to provide that no food
containing artificial trans fat shall be stored, distributed, held for
              

service, used in preparation of any menu item, served or sold in food
service establishments or mobile food establishments, as those terms
are defined in the State Sanitary Code (SSC). The prohibition does not
apply to: (1) foods that are served or sold directly to patrons in a
manufacturer's original sealed package bearing a Nutrition Facts panel
in the form required under the federal Nutrition Labeling and
Education Act of 1990 (NLEA) or the associated regulations of the Food
and Drug Administration (FDA); or (2) ingredients used or stored for
the purpose of manufacturing such foods.

Section 2 of the bill also provides that a food shall be deemed to
contain artificial trans fat if the food is labeled as, lists as an
ingredient, or contains: (1) vegetable shortening or margarine, unless
documentation acceptable to the Department of Health (DOH)
demonstrates that such shortening or margarine does not contain
partially hydrogenated vegetable oil; or (2) or any kind of partially
hydrogenated vegetable oil. However, a food whose Nutrition Facts
panel or other documentation from the manufacturer lists the trans fat
content of the food as less than 0.5 grams per serving shall not be
deemed to contain artificial trans fat.

Section 2 of the bill further provides that for as long as a food is
stored, used, served or sold by a food service establishment or mobile
food service establishment, the establishment must maintain
documentation acceptable to DOH which establishes the food's
artificial trans fat content.

Section 3 of the bill adds new Agriculture and Markets Law (AML) §
500(6) to provide that no food containing artificial trans fat shall
be stored, distributed, held for service, used in preparation of any
menu item, served or sold in food service establishments or retail
food stores, as those terms are defined in the AM L. The prohibition
does not apply to: (1) foods that are served or sold directly to
patrons in a manufacturer's original sealed package bearing a
Nutrition Facts panel in the form required under the NLEA or the FDA's
regulations; or (2) ingredients used or stored for the purpose of
manufacturing such foods.

Section 3 of the bill also provides that a food shall be deemed to
contain artificial trans fat if the food is labeled as, lists as an
ingredient, or contains: (1) vegetable shortening or margarine, unless
documentation acceptable to the Department of Agriculture and Markets
(A&M) demonstrates that such shortening or margarine does not contain
partially hydrogenated vegetable oil: or (2) any kind of partially
hydrogenated vegetable oil. However, a food whose Nutrition Facts
panel or other documentation from the manufacturer lists the trans fat
content of the food as less than 0.5 grams per serving shall not be
deemed to contain artificial trans fat.

Section 3 of the bill further provides that for as long as a food is
stored, used, served or sold by a food service establishment or a
retail food store, the establishment or store must maintain
documentation acceptable to A&M which establishes the food's
artificial trans fat content.

Section 4 of the bill provides that the bill takes effect: (1) 180
days after enactment with respect to oils, shortenings and margarines
containing artificial trans fat that are used for frying or in
spreads, and (2) one year after enactment with respect to oils or
shortenings used for deep frying of yeast dough or cake batter and
with respect to all other foods containing artificial trans fat.
However, the Commissioner of Health and the Commissioner of
Agriculture and Markets may promulgate any necessary 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,
nonpotentially 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 12month 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.

21 U.S.C. §§ 343(q) and (r), which codify the NLEA, and the associated
regulations of the FDA, require nutrition labeling on a "Nutrition
Facts" label on certain packaged foods. In general, the Nutrition
Facts panel is not required for food served by restaurants.

 JUSTIFICATION :

Trans fatty acids, also known as trans fats, increase blood levels of
low density lipoprotein (LDL), known as "bad" cholesterol, while
decreasing levels of high density lipoprotein (HDL or "good"
cholesterol), and are linked to coronary heart disease. While small
amounts of naturally occurring trans fats occur in dairy and meat
products, the great majority are artificially produced during
"hydrogenation," when vegetable oils are processed and made more solid
or into a more stable liquid. Artificial trans fats are most common in
shortening, fry oils (used for foods such as French fries, doughnuts
and other deep-fried foods) and commercially baked products (such as
cookies, crackers, pastries, pies, etc.).

The consensus among the scientific community, including the Institute
of Medicine of the National Academies, is that there is no known
health benefit to the consumption of artificial trans fats and that
there is no safe level of artificial trans fat consumption.
Accordingly, this bill seeks to improve public health by prohibiting
the storage, use, service or sale of foods containing artificial trans
fats in food service establishments, mobile food establishments and
retail food stores as those terms are defined by the SSC and the AML.
In effect, the bill applies to restaurants, mobile vendors and other
institutions such as schools, prisons and hospitals which are subject
to inspection by DOH or city or county health departments, as well as
supermarkets and convenience stores inspected by A&M.

A food will be deemed to contain artificial trans fats if it is or
contains vegetable shortening, margarine or partially hydrogenated
vegetable oil except that: (1) a shortening or margarine will not be
deemed to contain artificial trans fat if documentation establishes
that it does not contain partially hydrogenated vegetable oil; and (2)
a food will not be deemed to contain artificial trans fat if the
Nutrition Facts panel required by the NLEA or other acceptable
documentation establishes that the food has less than 0.5 grams of
artificial trans fat per serving.  This permits the use of dairy and
meat products that contain naturally occurring trans fats, newer
shortenings and margarines that do not contain artificial trans fats,
and other new products that contain very low amounts of partially
hydrogenated vegetable oil. Moreover, this is consistent with the
regulations of the United States Food and Drug Administration, which
permit Nutrition Fact labels to list the trans fat content of a food
as "0 grams" if it contains less than 0.5 grams per serving.

This bill's prohibition on artificial trans fats does not apply to:
(1) food that is served or sold directly to patrons or customers in a
manufacturer's original sealed package which bears the Nutrition Facts
panel in the form required by the NLEA or the related FDA regulations;
or (2) ingredients used or stored for the purpose of manufacturing
such foods. Most of the items sold in grocery and convenience stores
are contained in a manufacturer's original packaging with a Nutrition
Facts panel and therefore will not be subject to the bill. Produce
items are not implicated by the bill, which focuses on items
containing or constituting vegetable shortening, margarine and
partially hydrogenated oils. However, items "manufactured" by
supermarket bakeries (such as breads, doughnuts or cakes) and
supermarket delicatessens and meat or fish counters (such as
sandwiches, fried fish and potato salad), as well as the shortenings,
margarines and oils used to prepare these items, are covered by the
bill if they are not packaged with a Nutrition Facts label. This
ensures that unlabeled foods prepared for consumption at the point of
purchase do not contain artificial trans fats. whether prepared at a
restaurant or a retail store.

Compliance with the bill will be evaluated during the course of
regular inspections authorized under the PHL, which are conducted by
DOH or city and county health departments, or under the AML, which are
conducted by A&M. Violations are punishable by the penalties set forth
in the PHL, AML or the associated regulations.

The bill takes effect six months after the bill is enacted with
respect to oils, shortenings and margarines containing artificial
trans fat that are used for frying or in spreads, as it is relatively
simple for establishments to locate other products that do not contain
artificial trans fats for these purposes. Any other use of foods with
artificial trans fats must be discontinued six months later, giving
establishments and stores time to reformulate their recipes or find
other suppliers for their products and ingredients.

 BUDGETARY 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 takes effect: (1) 180 days after enactment with respect to
oils, shortenings and margarines containing artificial trans fat that
are used for frying or in spreads, and (2) one year after enactment
with respect to oils or shortenings used for deep frying of yeast
dough or cake batter and with respect to all other foods containing
artificial trans fat. The Commissioner of Health and the Commissioner
of Agriculture and Markets may promulgate any necessary regulations,
on an emergency basis if necessary, prior to that date.