- The Food Marketing Institute, along with the National Association of Convenience Stores, the New York Association of Convenience Stores and the Restaurant Law Center, filed a federal lawsuit on Friday to prevent New York City from enforcing its own calorie labeling law for menus before a federal law takes effect, according to a statement from FMI.
- New York passed its own calorie labeling law for restaurants and movie chains in 2008, according to Reuters. It was amended to reflect the federal menu labeling law in 2015. According to a statement from FMI, New York will begin enforcing its law on Aug. 21, while the federal law will not be enforced until next May.
- “The federal law preempts a municipality from taking matters into its own hands, and this is exactly what New York City is attempting to do,” Jennifer Hatcher, FMI's chief public policy officer, said in the written statement. “New York City’s actions threaten interstate commerce and would introduce unneeded elements of confusion into the food retail marketplace.”
The federal law requiring all foodservice locations — including grocery and convenience stores — to post calorie counts for consumers was set to take effect May 5. Days earlier, the Trump administration postponed the law for another year. Weeks before that, FMI, the National Grocers Association and NACS had made a last-minute appeal to the U.S. Food and Drug Administration asking for the law to be postponed and possibly reconsidered.
With the delay, grocery and convenience stores got their wish, but this lawsuit also shows they are dealing with its consequences. New York City's version of menu labeling rules, which mirror the FDA's, went into effect in December. The city held off at that point, waiting instead for the federal rules to take effect. When they were postponed, Mayor Bill de Blasio decided the city would not wait any longer.
Grocery retailers and convenience stores have argued they offer more prepared and ready-to-eat foods than restaurants, and the menu labeling regulation is far more work for them to comply with. In their appeal to the FDA, the retail groups said they were unable to comply with the law as it was written. They also said the cost of implementing the law exceeded $1 billion and has taken much more time for compliance than the 14.5-million-hour estimate initially issued by the FDA.
However, considering the federal rule was delayed days before it was to be enforced, many retailers should have been at least somewhat ready to comply with it back in May. Some groceries started posting calorie counts earlier in the spring despite some confusion about how the law directly applied to them. Many hoped their customers would appreciate the transparency.
New York City is well within its rights to enforce its own laws, especially because some may question if the federal law — part of the under-attack Affordable Care Act — will ever see full implementation. It will be interesting to see the court's reaction to the retailers' argument.
Food labeling experts have cautioned that something similar could happen, with a state or city enforcing its own version of the law, if implementation delays crop up for other federal laws. A law requiring GMO labeling in Vermont pushed the federal government to pass its own law 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 could push for enforcement of their local laws, bringing the chaos that federal law was intended to avoid.