STATE OF NEW YORK
________________________________________________________________________
6425--A
2009-2010 Regular Sessions
IN ASSEMBLY
March 3, 2009
___________
Introduced by M. of A. MORELLE, HOYT, PAULIN, CASTRO, GOTTFRIED, LANC-
MAN, COLTON, MILLMAN, ENGLEBRIGHT, DINOWITZ, JAFFEE, DenDEKKER --
Multi-Sponsored by -- M. of A. COOK, MAGNARELLI, MENG -- read once and
referred to the Committee on Consumer Affairs and Protection -- recom-
mitted to the Committee on Consumer Affairs and Protection in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT in relation to creating the menu nutritional disclosure act of
2010
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "menu
2 nutritional disclosure act of 2010".
3 § 2. 1. For purposes of this act, the following definitions shall
4 apply:
5 (a) "Food facility" means a food facility in the state that operates
6 under common ownership or control with at least 9 other food facilities
7 with the same name in the state that offer for sale substantially the
8 same menu items, or operates as a franchised outlet of a parent company
9 with at least 9 other franchised outlets with the same name in the state
10 that offer for sale substantially the same menu items, except that a
11 "food facility" does not include the following:
12 (i) Certified farmer's markets.
13 (ii) Commissaries.
14 (iii) Licensed health care facilities.
15 (iv) Mobile support units.
16 (v) Restricted food service facilities.
17 (vi) Retail stores in which a majority of sales are from a pharmacy.
18 (vii) Vending machines.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09356-05-0
A. 6425--A 2
1 (b) "Calorie content information" means the total number of calories
2 per standard menu item, as that item is usually prepared and offered for
3 sale.
4 (c) "Drive-through" means an area where a customer may provide an
5 order for and receive standard menu items while occupying a motor vehi-
6 cle.
7 (d) "Menu board" means a posted list or pictorial display of food or
8 beverage items offered for sale by a food facility. "Menu board" does
9 not include printed or pictorial materials for the purpose of marketing.
10 (e) "Menu" means a printed list or pictorial display of food or bever-
11 age items offered for sale by a food facility. "Menu" shall not include
12 printed or pictorial materials for the purpose of marketing.
13 (f) "Food item tag" means a label or placard that identifies any food
14 item displayed for sale at a food facility. "Food item tag" shall not
15 include printed or pictorial materials for the purpose of marketing.
16 (g) "Nutritional information" includes, but is not limited to, all of
17 the following, per standard menu item, as that item is usually prepared
18 and offered for sale:
19 (i) Total number of calories.
20 (ii) Total number of grams of carbohydrates.
21 (iii) Total number of grams of saturated fat.
22 (iv) Total number of milligrams of sodium.
23 (h) "Point of sale" means the location where a customer makes an
24 order.
25 (i) "Standard menu item" means a food or beverage item offered for
26 sale by a food facility through a menu, menu board, or food item tag at
27 least 180 days per calendar year, except that "standard menu item" does
28 not include any of the following:
29 (i) A food item that is customized on a case-by-case basis in response
30 to an unsolicited customer request.
31 (ii) An alcoholic beverage, the labeling of which is not regulated by
32 the federal food and drug administration.
33 (iii) A packaged food otherwise subject to the nutrition labeling
34 requirements of the federal Nutrition Labeling and Education Act of
35 1990.
36 (iv) A food item when served at a consumer self-service salad bar.
37 (v) A food or beverage item when served at a consumer self-service
38 buffet.
39 (vi) Condiments.
40 (vii) Other items placed on counters or tables for use without charge
41 to consumers.
42 (j) "Reasonable basis" means any reasonable means recognized by the
43 federal food and drug administration of determining nutritional informa-
44 tion, as well as calorie content information, for a standard menu item,
45 as usually prepared and offered for sale, including, but not limited to,
46 nutrient databases and laboratory analyses.
47 (k) "Appetizer" means a food item that is generally served prior to a
48 food item that is generally regarded as the primary food item in a meal.
49 An "appetizer" includes a first course, starter, or small plate.
50 (l) "Dessert" means a food item that is generally served after a food
51 item that is generally regarded as the primary food item in a meal.
52 "Dessert" includes, but is not limited to, cakes, pastries, pies, ice
53 cream and food items that contain ice cream, confections, and other
54 sweets.
55 2. (a) Commencing July 1, 2011 and remaining in effect until December
56 31, 2012, inclusive, every food facility shall disclose nutritional
A. 6425--A 3
1 information as required by paragraph (b) of this subdivision or comply
2 with the requirements of subdivision 3 of this section during this time.
3 (b) (i) In order to comply with paragraph (a) of this subdivision, a
4 food facility that does not provide sit-down service shall disclose the
5 information in a clear and conspicuous manner on a brochure that is made
6 available at the point of sale prior to or during the placement of an
7 order. A food facility that provides sit-down service shall provide the
8 nutritional information in a clear and conspicuous size and typeface on
9 at least one of the following:
10 (1) A brochure available on the table.
11 (2) A menu next to each standard menu item.
12 (3) A menu, under an index section that is separate from the listing
13 of standard menu items.
14 (4) A menu insert.
15 (5) A table tent on the table.
16 (ii) Notwithstanding subparagraph (i) of this paragraph, a food facil-
17 ity that has a drive-through area and uses a menu board to display or
18 list standard menu items at the point of sale shall, for purposes of the
19 drive-through area only, disclose the nutritional information in a clear
20 and conspicuous manner on a brochure or other printed material that is
21 available upon request, and shall conspicuously display a notice at the
22 point of sale that reads: "NUTRITIONAL INFORMATION IS AVAILABLE UPON
23 REQUEST" or other similar statement that indicates the disclosure of
24 nutritional information is available upon request.
25 3. (a) On and after January 1, 2013, every food facility that provides
26 a menu shall disclose calorie content information for a standard menu
27 item next to the item on the menu in a size and typeface that is clear
28 and conspicuous.
29 (b) On and after January 1, 2013, every food facility that uses an
30 indoor menu board shall disclose calorie content information for a stan-
31 dard menu item next to the item on the menu board in a size and typeface
32 that is clear and conspicuous.
33 (c) On and after January 1, 2013, every food facility that uses a food
34 item tag as an alternative to a menu or menu board to describe a stand-
35 ard menu item that is displayed for sale in a display case within the
36 food facility shall disclose calorie content information for that stand-
37 ard menu item on the food item tag for that item in a size and typeface
38 that is clear and conspicuous.
39 (d) On and after January 1, 2013, every food facility that has a
40 drive-through area and uses a menu board to display or list standard
41 menu items at the point of sale shall, for purposes of the drive-through
42 area only, disclose the nutritional information for each standard menu
43 item in a clear and conspicuous manner on a brochure or other printed
44 material that is available upon request, and shall clearly and conspicu-
45 ously display a notice at the point of sale that reads: "NUTRITIONAL
46 INFORMATION IS AVAILABLE UPON REQUEST" or other similar statement that
47 indicates the disclosure of nutritional information is available upon
48 request. If a food facility subject to this paragraph discloses nutri-
49 tional information in the manner described in paragraph (b) of this
50 subdivision, the food facility shall be deemed to be in compliance with
51 this paragraph.
52 4. For purposes of subdivision 3 of this section, the disclosure of
53 calorie content information on a menu or menu board next to a standard
54 menu item that is a combination of at least two standard menu items on
55 the menu or menu board, shall, based upon all possible combinations for
56 that standard menu item, include both the minimum amount of calories for
A. 6425--A 4
1 the calorie count information and the maximum amount of calories for the
2 calorie count information. If there is only one possible total amount of
3 calories, then this total shall be disclosed.
4 5. For purposes of subdivision 3 of this section, the disclosure of
5 calorie content information on a menu or menu board next to a standard
6 menu item that is not an appetizer or dessert, but is intended to serve
7 more than one individual, shall include both of the following:
8 (a) The number of individuals intended to be served by the standard
9 menu item.
10 (b) The calorie content information per individual serving. If the
11 standard menu item is a combination of at least two standard menu items,
12 this disclosure shall, based upon all possible combinations for that
13 standard menu item, include both the minimum amount of calories for the
14 calorie count information and the maximum amount of calories. If there
15 is only one possible total amount of calories, then this total shall be
16 disclosed.
17 6. For beverage items, a range of calorie count information may be
18 provided, which includes both the minimum amount of calories for any
19 beverage item and the maximum amount of calories.
20 7. The nutritional information and calorie content information
21 required by this act shall be determined on a reasonable basis. A
22 reasonable basis determination of nutritional information and calorie
23 content information shall be required only once per standard menu item,
24 provided that portion size is reasonably consistent and the food facili-
25 ty follows a standardized recipe and trains to a consistent method of
26 preparation.
27 8. Menus and menu boards may include a disclaimer that indicates that
28 there may be variations in nutritional content across servings, based on
29 variations in overall size and quantities of ingredients, and based on
30 special ordering.
31 9. This act shall not be construed to create or enhance any claim,
32 right of action, or civil liability that did not previously exist under
33 state law or limit any claim, right of action, or civil liability that
34 otherwise exists under state law. No private right of action shall arise
35 out of this act. The only enforcement mechanism of this act shall be the
36 local enforcement agency.
37 10. This act shall not be construed to preclude any food facility from
38 voluntarily providing nutritional information in addition to the
39 requirements of this act.
40 11. To the extent consistent with federal law, this act, as well as
41 any other state law that regulates the disclosure of nutritional infor-
42 mation, is a matter of statewide concern and occupies the whole field of
43 regulation regarding the disclosure of nutritional information by a food
44 facility as well as content required to be posted on menus, menu boards
45 and food item tags. No ordinance or regulation of a local government
46 shall regulate the dissemination of nutritional information or the
47 content required to be placed on menus, menu boards or food item tags by
48 a food facility. Any ordinance or regulation that violates this prohibi-
49 tion is void and shall have no force or effect.
50 12. Commencing July 1, 2011, a food facility that violates this act is
51 guilty of an infraction, punishable by a fine of not less than fifty
52 dollars or more than five hundred dollars, which may be assessed by a
53 local enforcement agency. However, a food facility may not be found to
54 violate this act more than once during an inspection visit. Notwith-
55 standing the penal law or any other provision of law to the contrary, a
56 violation of this act shall not constitute a misdemeanor.
A. 6425--A 5
1 13. Within 180 days after the effective date of this act, the New York
2 state department of health shall promulgate regulations defining the
3 specific requirements that constitute substantial compliance with this
4 act by food facilities.
5 14. If any provision of this act or the application thereof is for any
6 reason held invalid, ineffective, or unconstitutional by a court of
7 competent jurisdiction, the remainder of this act shall not be affected
8 thereby, and to this end, the provisions of this act are severable.
9 § 3. This act shall take effect immediately.
