BILL NUMBER:  S6923

 TITLE OF BILL :
An act to amend the public health law, in relation to the posting of
caloric value of food items


 PURPOSE :

This bill requires certain restaurants and food service establishments
to provide calorie information to customers.

 SUMMARY OF PROVISIONS :

Section 1 of the bill amends the Public Health Law (PHL) by adding a
new § 1352-e authorizing the Commissioner of Health (Commissioner) to
develop,regulations requiring restaurants and food service
establishments to prominently post calorie information for menu items
as usually prepared and offered for sale on standard printed menus,
menu boards or food items offered for sale that are identified by tags
or labels.

Under new PHL § 1352-e(1), chain restaurants and food establishments
will be required to post the number of calories per menu item adjacent
to such menu items on menu boards, menus and on food item tags. Such
information shall be listed clearly and conspicuously, adjacent to or
              

in close proximity to the applicable menu or food 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. The range of calorie
content values showing the minimum to maximum numbers of all calories
for all flavors or varieties or combinations of food items shall be
posted. Combinations having only one value shall list that total. The
Commissioner shall develop regulations for the posting of calorie
content information per serving for menu items that are clearly not
intended for serving more than one individual and for alcoholic
beverages.

New PHL § 1352-e(1) further provides that calorie 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
menu item names, the same as the drive through menu board. The
Commissioner shall develop regulations to provide a temporary waiver
of these requirements 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.

New PHL § 1352-e(1) states that the section does not apply to menu
items listed for less than 30 days in one calendar year. Further, the
bill states that nothing in new PHL § 1352-d prohibits the provision
of additional nutrition information or a disclaimer about minor
variations in calorie levels because of ingredients, serving sizes and
customer preferences.

New PHL § 1352-e(2) defines a chain restaurant or food service
establishment as an establishment engaged in the preparation, serving
and sale of food or beverages or meals with standardized preparations,
portion sizes and content intended for individual portion service.
The establishment would be one of at least 15 such restaurants or
establishments doing business nationally and operating under common
ownership or control, or as franchises or under. the same trade name
and offering predominately the same items on the same menus or menu
boards or with the same food item tags. These requirements shall not
apply to food establishments that are licensed under Agriculture and
Markets Law Article 20-C, except for sections within those
establishments that have been determined by the Commissioner to be
chain restaurants or food service establishment.

New PHL § 1352-e(3) provides a chain restaurant or food service
establishment violates the section by failing to post calorie values
or obtain calorie analyses or documentation, or by knowingly or
recklessly listing wrong calorie information. Health inspectors are
not required to verify accuracy, but the Commissioner can request
documentation of accuracy.

New PHL § 1352-e(4) provides that the Commissioner shall establish
regulations for calorie analysis using databases, laboratory testing
or other acceptable methods, and for recordkeeping.

New PHL § 1352-e(4) provides that violations of the section shall be
limited to the penalties set forth in PHL § 12. The subdivision also
preempts 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 standards set forth in the bill and the rules
and regulations promulgated pursuant thereto and that require
nutrition information posting on menus, menu boards or food item tags.

Section 2 of the bill provides that the bill takes effect one year
after enactment.

 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 § 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 State
Sanitary Code.

 JUSTIFICATION :

Obesity rates in adults have doubled over the last 20 years. The
percentage of seriously overweight children has tripled, in the past
two decades. The New York City Department of Health and Mental Hygiene
found that nearly half of elementary-aged children are overweight.
The federal Centers for Disease Control (CDC) has estimated that one
in three children born in the United States in 2000 will become
diabetic during their lifetime because of obesity. CDC found that $75
billion is spent nationally each year on obesity related medical
costs, half of it public dollars through Medicaid and Medicare. In
addition, it has been estimated that billions of New York's Medicaid
spending is due to obesity each year.

While obesity has been rising Americans are increasingly eating meals
away from home and food businesses spend hundreds of millions of
dollars encouraging children and their families to do it even more.
In 1970, Americans spent just 26 percent of their food dollars on
foods prepared outside their homes but today spend almost half of food
dollars eating out. The average American consumes about one-third of
their calories from foods from restaurants and other food-service
establishments. Portion sizes have been increasing and studies show
that people tend to eat greater quantities of food when they are
served more. It is not uncommon for a restaurant entree to provide
half of a day's recommended calories. Children eat almost twice as
many calories when they eat out compared to home.

Since 1994, consumers get nutrition labeling on packaged foods.
However, they are now getting more of their food from restaurants and
other food service establishments and they cannot tell that a
sweetened coffee drink at one chain may have as many calories as a
cheeseburger with fries at another. Food industry critics of
government efforts to fight the obesity problem claim that it is up to
parents to choose healthier foods to eat. Restaurant calorie
information could empower parents - and children - to do a better job.
Studies have found that 90 percent of consumers underestimate the
calorie level of menu items and when calorie information is present,
consumers choose lower calorie items one-third of the time.  Over 80
percent of New York State residents say they would support a bill
similar to what was passed in New York City to require those chains
and fast food establishments to show the calorie for their offerings.

This proposal would not place an undue burden on business. It only
applies to menu items that are offered in standardized sizes and
content, and one-day specials or special orders by customers would not
have to be analyzed and posted. This proposal does not mandate what
restaurants offer or how they cook it.

 BUDGETARY IMPLICATIONS :

Because enforcement of the bill's provisions will occur as part of
regular inspections of restaurants and other food establishments, the
bill is not expected to have a fiscal impact on the State or
localities.

 EFFECTIVE DATE :
This bill takes effect one year after enactment, and the Commissioner
of Health may promulgate any necessary regulations prior to that date.