Deep within the nearly 2000 pages of the health reform bill passed by the House of Representatives is a provision mandating chain restaurants and other retail food establishments with more than 20 locations post calorie counts on menus and menu boards including drive-thru menu boards. There is no requirement for disclosure of calories for telephone orders or orders placed over the Internet.
New York City and several nearby counties, including Westchester and Ulster have been ahead of the curve and have already passed their own versions of calorie disclosure laws for menus and menu boards, or are considering their own legislation. New York City's, Westchester's and Ulster's passed versions apply to chains and other retail establishments with more than 15 locations. Some have exceptions for seasonal foods and foods offered for sale for a period of less than 60 or 90 days. Fines and enforcement mechanisms vary by county. Menu bills have also passed in Albany County and Suffolk County.
The version of the menu board law pending passage in the New York Assembly (A.8506) also applies to chains with 15 or more locations, but permits the calorie information to placed nearby or adjacent to the item offered for sale, instead of mandating close proximity between the item offered and the number calorie disclosure. The statewide version also permitted local laws that were more rigorous, provided the minimum mandate of the statewide law was met.
The restaurant industry had been up in arms over having to meet varied obligations in so many jurisdictions. Bills had also passed in California, Philadelphia, Massachusetts, Maine, Oregon and Tennessee.
The provision contained in the federal health care bill provides for national uniformity for all chains and retailers with over 20 locations, and although originally opposed by industry, is now embraced because it sets a national standard, and preempts local laws that enact or continue to enforce standards against chain restaurants and other retailers.
So, what happens to all of those New York laws, proposed, passed and pending that sought to mandate calorie disclosures in chain restaurants? An express provision of the federal law preempts (or trumps) state and local versions as applied to entities with over 20 locations. Those with less than 20 (say 15-19 locations), can opt into the federal scheme and exempt themselves from local regulations. Most analysts do not believe that municipalities will maintain mechanisms to monitor and control those entities that have between 15 and 19 locations. Some may expand their laws to include all entities with less than 20 locations, but this would put a burden on the smallest businesses while exempting large chains from local laws.
Of course, the provision of the House health care bill still must pass the Senate and be signed by President Obama. Until that actually happens, all laws remain in full force and effect, and efforts to pass new laws, even more stringent ones, go on unabated.
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