Today, the Food Marketing Institute (FMI), National Association of Convenience Stores (NACS), New York Association of Convenience Stores (NYACS), and the Restaurant Law Center (RLC) filed suit in the U.S. District Court for the Southern District of New York to stop New York City from prematurely enforcing rules requiring calorie and nutrient information prior to a May 2018 compliance date established by the FDA. The lawsuit claims that New York’s premature enforcement is preempted by federal law.
Recently, the U.S. Food and Drug Administration (FDA) announced that it is deferring enforcement of nationwide menu labeling rules until May 2018, in order to respond to serious industry concerns regarding implementation and to consider possible amendments to alleviate the costs of the rule. FDA published rules requiring calorie disclosures on menus in 2014, but has decided to delay them in order to work through problems with those rules.
The four organizations offered the following comments:
“Federal preemption for menu labeling is the law of the land. New York City is overstepping its legal authority in its attempt to enforce menu labeling ahead of the federal compliance date of May 7, 2018. We expect our preliminary injunction request will be granted to this clear violation of federal law,” says Angelo Amador, executive director of the Restaurant Law Center.
“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,” says Jennifer Hatcher, FMI chief public policy officer. “New York City’s actions threaten interstate commerce and would introduce unneeded elements of confusion into the food retail marketplace.”
“New York City can’t jump the gun and start imposing fines when FDA hasn’t even figured out how disclosures should be made,” says Lyle Beckwith, senior vice president of government relations for NACS. “Doing that holds stores to standards that no one can meet and undermines the point of having a federal law in the first place.”
“It’s ridiculous for New York City to force convenience store chains to prematurely incur the costs and logistical burdens associated with menu labeling when federal regulations pre-empt localities from doing so,” says James Calvin, president of the New York Association of Convenience Stores.
As part of the lawsuit, the plaintiffs asked the court to enter an injunction to stop New York City from enforcing its rules until the federal rules are ready. Unless the court acts, New York City has threatened to start levying fines against retailers and restaurants starting on August 21st. The rules New York City is trying to enforce are impossible to meet. If New York City rushes to fine people based on rules that are contingent upon authorization from FDA, this will not help anyone.