- The federal government inserted itself into the legal battle to stop New York City from enforcing its own menu labeling law, filing a statement of interest on Monday. In the filing, government attorneys argue federal law directs only Congress and the Food and Drug Administration to promulgate the law.
- New York had passed its own menu labeling law, but made it identical to the federal law and delayed enforcement until the national law took effect. After the Trump administration announced a one-year delay to the federal law, New York City moved ahead with its own version, which is scheduled to take effect on Monday, according to The New York Times.
- "The Act unequivocally demonstrated Congress’s intent that menu labeling requirements be established with national uniformity, specifically through regulatory requirements to be set by the FDA," the filing states. "To fulfill that purpose, the FDA has been tasked with determining when and in what circumstances uniform menu-labeling rules will be enforced across the nation. The City may not choose to take its own path in the face of this clear expression of Congressional purpose."
Considering the anti-regulatory stance of the Trump administration, coupled with the basic principle of keeping labeling laws the same nationwide, this filing is not a big surprise. Opponents to the federal menu labeling law — mainly grocery and convenience stores who argued that adding calorie counts to their foodservice options added an extra layer of complexity given the constant nature of change — succeeded in getting the law's implementation delayed just days before it was set to go into effect in May.
Since New York had already passed its own menu labeling law, Mayor Bill deBlasio ordered that the city's law would be enforced soon after the Trump administration announced the federal law's delay. According to Politico, fines for noncompliance range from $200 to $600.
In response to New York's action, the Food Marketing Institute, National Association of Convenience Stores, New York Association of Convenience Stores and Restaurant Law Center filed a lawsuit to stop the city's law from going forward. This statement was filed as part of that case, and according to The New York Times, there will be a hearing on Wednesday.
The federal government's filing and its arguments carry quite a bit of weight for the food industry. Federal regulators argue the preemption clause in the federal menu labeling law — part of the Affordable Care Act, which for the time being appears to be out of legislative crosshairs for repeal — extends beyond actual enactment of the law itself. To put it more plainly, regulators argue Congress intended for the federal law to take precedence over any local law, regardless of whether the federal law is actually in effect.
The precedent this case sets has the potential to cast a long shadow. A 2014 law requiring GMO labeling in Vermont pushed the federal government to pass its own similar law last year, so that all products sold in the U.S. would have the same labeling requirements. If the U.S. Department of Agriculture misses its deadline to propose full regulations by July 2018, some think Vermont and other jurisdictions may push for enforcement of their local laws, bringing the chaos that the federal law was intended to avoid. A decision here in FDA's favor may nip this argument in the bud.
On the other hand, this case may decide very little as far as menu labeling goes. The federal government is fighting another lawsuit about the menu labeling law — this one in June by the Center for Science in the Public Interest and the National Consumers League — arguing FDA's decision to delay the implementation of the menu labeling law was illegal. The groups, both of which are strong defenders of the menu labeling law, cite a technicality: the delay violated the Administrative Procedures Act because the federal government did not provide advance notice, and did not give the public a chance to comment on the decision. In this case, a decision in favor of the consumer groups would make the issue of New York's law moot.