S T A T E O F N E W Y O R K
________________________________________________________________________
6438
I N S E N A T E
January 11, 2010
___________
Introduced by Sen. DUANE -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law and the agriculture and markets
law, in relation to the posting of calorie content values for food
sold by retail food establishments and retail food service operations
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. The legislature finds that rates of
obesity in the state of New York have increased to epidemic proportions.
Obesity is associated with numerous health problems, including, but not
limited to, diabetes, heart disease, cancer, osteoarthritis and asthma,
and carries a great public health cost. On average, Americans consume
one-third of their calories from dining away from home or purchasing
prepared meals to bring home, and there is evidence that consumers find
it difficult to estimate the calorie counts of typical restaurant meals.
It is important to ensure that consumers are provided with information
sufficient to allow them to make informed decisions about their dining
choices.
S 2. Section 1351 of the public health law is amended to read as
follows:
S 1351. Food places; duty to permit inspections. Every owner, opera-
tor, lessor, lessee or person in charge of any hotel, restaurant, dining
room, dining car, drug store, soda fountain, steamboat or other place
engaged in the preparation, sale or service of food for and to the
general public, and every officer or other person in charge of any
public, penal or charitable institution in this state, shall permit the
commissioner or his duly authorized agents or employees to have access
to all parts of any and all of such places herein mentioned wherein food
is stored, prepared or served for the purpose of ascertaining whether
the provisions of sections thirteen hundred fifty to thirteen hundred
fifty-two, inclusive, AND SECTION THIRTEEN HUNDRED FIFTY-SEVEN of this
[chapter] ARTICLE, and the provisions of the sanitary code and
provisions of local ordinances or regulations are being observed.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15353-01-0
S. 6438 2
S 3. The public health law is amended by adding a new section 1357 to
read as follows:
S 1357. RETAIL FOOD ESTABLISHMENTS; POSTING OF CALORIE CONTENT VALUES.
1. WHENEVER USED IN THIS SECTION, UNLESS OTHERWISE EXPRESSLY STATED OR
UNLESS THE CONTEXT OR SUBJECT MATTER REQUIRES A DIFFERENT MEANING, THE
FOLLOWING TERMS SHALL HAVE THE MEANINGS HEREINAFTER SET FORTH OR INDI-
CATED:
(A) "RETAIL FOOD ESTABLISHMENT" MEANS ANY FOOD SERVICE ESTABLISHMENT
OR MOBILE FOOD SERVICE ESTABLISHMENT, AS DEFINED BY THE STATE SANITARY
CODE, WHICH IS USED OR OPERATED FOR THE PURPOSE OF PREPARING AND SERVING
FOOD AT THE RETAIL LEVEL, AND IS ONE OF A GROUP OF FIFTEEN OR MORE
RETAIL FOOD ESTABLISHMENTS DOING BUSINESS NATIONALLY THAT: (I) OFFER
FOR SALE SUBSTANTIALLY THE SAME MENU ITEMS, IN SERVINGS THAT ARE STAND-
ARDIZED FOR PORTION SIZE AND CONTENT; AND (II) OPERATE UNDER COMMON
OWNERSHIP OR CONTROL, OPERATE AS FRANCHISED OUTLETS OF A PARENT BUSI-
NESS, OR DO BUSINESS UNDER THE SAME NAME.
(B) "FOOD ITEM" MEANS A FOOD, AS DEFINED BY THE STATE SANITARY CODE,
WHICH IS OFFERED FOR SALE BY A RETAIL FOOD ESTABLISHMENT IN STANDARDIZED
SIZES AND INTENDED FOR INDIVIDUAL PORTION SERVICE.
(C) "MENU" MEANS A PRINTED LIST OR PRINTED PICTORIAL DISPLAY OF FOOD
ITEMS AND THEIR PRICES THAT ARE AVAILABLE FOR SALE FROM A RETAIL FOOD
ESTABLISHMENT, AND SHALL INCLUDE MENUS DISTRIBUTED OR PROVIDED OUTSIDE
OF THE ESTABLISHMENT.
(D) "MENU BOARD" SHALL MEAN ANY LIST OR PICTORIAL DISPLAY OF FOOD
ITEMS AND THEIR PRICES THAT IS POSTED AND VISIBLE: (I) WITHIN A RETAIL
FOOD SERVICE ESTABLISHMENT, OR (II) OUTSIDE OF A RETAIL FOOD ESTABLISH-
MENT FOR THE USE OF CUSTOMERS IN ORDERING FROM THE ESTABLISHMENT'S
DRIVE-THROUGH.
(E) "MENU ITEM" SHALL MEAN ANY INDIVIDUAL FOOD ITEM, OR COMBINATION OF
FOOD ITEMS, THAT IS LISTED OR DISPLAYED ON A RETAIL FOOD ESTABLISHMENT'S
MENU OR MENU BOARD. THIS TERM DOES NOT INCLUDE: (I) TEMPORARY ITEMS THAT
ARE LISTED ON A MENU OR MENU BOARD FOR LESS THAN THIRTY DAYS IN ONE
CALENDAR YEAR; OR (II) CONDIMENTS AND SIMILAR ITEMS PLACED ON A TABLE OR
COUNTER FOR GENERAL USE OR OTHERWISE PROVIDED WITHOUT CHARGE.
(F) "CALORIE CONTENT VALUE" MEANS THE NUMBER OF CALORIES IN A FOOD
ITEM OR MENU ITEM IN THE SIZE AND PORTION NORMALLY OFFERED FOR SALE, AS
DETERMINED PURSUANT TO A METHOD THAT COMPLIES WITH SUBDIVISION FIVE OF
THIS SECTION.
(G) "DRIVE-THROUGH" MEANS AN AREA WHERE A CUSTOMER MAY PLACE AN ORDER
FOR AND RECEIVE MENU ITEMS WHILE OCCUPYING A MOTOR VEHICLE.
(H) "FOOD ITEM TAG" MEANS A TAG, LABEL OR PLACARD PLACED IN CLOSE
PROXIMITY TO A FOOD ITEM DISPLAYED FOR SALE BY A RETAIL FOOD ESTABLISH-
MENT THAT IDENTIFIES THE ITEM.
2. (A) FOR EACH MENU ITEM OFFERED FOR SALE BY A RETAIL FOOD ESTABLISH-
MENT, THE TOTAL CALORIE CONTENT VALUE OF SUCH ITEM AS OFFERED FOR SALE
SHALL BE LISTED ON ALL OF THE ESTABLISHMENT'S MENUS AND MENU BOARDS.
SUCH CALORIE CONTENT VALUE SHALL BE LISTED CLEARLY AND CONSPICUOUSLY,
ADJACENT TO OR IN CLOSE PROXIMITY TO THE APPLICABLE MENU ITEM SO THAT IT
IS CLEARLY ASSOCIATED WITH SUCH ITEM, AND IN A FONT AND FORMAT THAT IS
AT LEAST AS PROMINENT, IN SIZE AND APPEARANCE, AS THAT USED TO POST
EITHER THE NAME OR PRICE OF THE MENU ITEM.
(B) CALORIE CONTENT VALUES AT DRIVE-THROUGH WINDOWS SHALL BE DISPLAYED
ON EITHER THE DRIVE-THROUGH MENU BOARD OR A STANCHION, ADJACENT TO SUCH
MENU BOARD, WHICH IS VISIBLE TO CUSTOMERS AT OR PRIOR TO THE POINT OF
ORDERING, SO LONG AS THE CALORIE CONTENT VALUE OF EACH MENU ITEM IS
LISTED CLEARLY AND CONSPICUOUSLY, ADJACENT TO OR IN CLOSE PROXIMITY TO
S. 6438 3
THE APPLICABLE MENU ITEM SO THAT IT IS CLEARLY ASSOCIATED WITH SUCH
ITEM, AND IN A FONT AND FORMAT THAT IS AT LEAST AS PROMINENT, IN SIZE
AND APPEARANCE, AS THAT USED TO POST EITHER THE NAME OR PRICE OF THE
MENU ITEM ON THE MENU BOARD.
(C) FOR MENU ITEMS OFFERED FOR SALE IN DIFFERENT FLAVORS OR VARIETIES,
THE RANGE OF CALORIE CONTENT VALUES SHOWING THE MINIMUM TO MAXIMUM
NUMBERS OF CALORIES FOR ALL FLAVORS AND VARIETIES OF THAT ITEM SHALL BE
LISTED FOR EACH SIZE OFFERED FOR SALE ON MENUS AND MENU BOARDS.
(D) FOR COMBINATIONS OF DIFFERENT FOOD ITEMS LISTED OR PICTURED AS A
SINGLE MENU ITEM, THE RANGE OF CALORIE CONTENT VALUES SHOWING THE MINI-
MUM TO MAXIMUM NUMBERS OF CALORIES FOR ALL COMBINATIONS OF THAT MENU
ITEM SHALL BE LISTED ON MENUS AND MENU BOARDS. IF THERE IS ONLY ONE
POSSIBLE CALORIE TOTAL FOR THE COMBINATION, THEN THAT TOTAL SHALL BE
LISTED ON MENUS AND MENU BOARDS.
(E) WHEN A FOOD ITEM IS DISPLAYED FOR SALE WITH A FOOD ITEM TAG, SUCH
FOOD ITEM TAG SHALL INCLUDE THE CALORIE CONTENT VALUE FOR THAT FOOD ITEM
IN A FONT AND FORMAT THAT IS AT LEAST AS PROMINENT, IN SIZE AND APPEAR-
ANCE, AS THAT USED TO IDENTIFY THE ITEM.
(F) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBDIVISION, THE CALO-
RIE CONTENT VALUE OF AN ALCOHOLIC BEVERAGE OFFERED FOR SALE BY A RETAIL
FOOD ESTABLISHMENT SHALL BE LISTED AS REQUIRED BY PARAGRAPH (B) OF
SUBDIVISION THREE OF THIS SECTION.
3. (A) CALORIE CONTENT VALUES (IN KCAL) REQUIRED BY THIS SECTION SHALL
BE BASED UPON A VERIFIABLE ANALYSIS OF A FOOD OR MENU ITEM, WHICH MAY
INCLUDE THE USE OF NUTRIENT DATABASES, LABORATORY TESTING, OR OTHER
RELIABLE METHODS OF ANALYSIS, AND SHALL BE ROUNDED TO THE NEAREST TEN
CALORIES FOR CALORIE CONTENT VALUES ABOVE FIFTY CALORIES AND TO THE
NEAREST FIVE CALORIES FOR CALORIE CONTENT VALUES OF FIFTY CALORIES AND
BELOW.
(B) IN LIEU OF LISTING A CALORIE CONTENT VALUE FOR EACH ALCOHOLIC
BEVERAGE OFFERED FOR SALE, A RETAIL FOOD ESTABLISHMENT MAY LIST AN AVER-
AGE CALORIE CONTENT VALUE PER STANDARD SERVING FOR EACH TYPE OF ALCOHOL-
IC BEVERAGE OFFERED FOR SALE BY THE ESTABLISHMENT, ACCORDING TO REGU-
LATIONS OF THE DEPARTMENT.
4. DOCUMENTATION ESTABLISHING THE RESULTS OF ANY ANALYSIS CONDUCTED
PURSUANT TO PARAGRAPH (A) OF SUBDIVISION THREE OF THIS SECTION FOR A
FOOD OR MENU ITEM SHALL BE MAINTAINED BY THE ESTABLISHMENT FOR AS LONG
AS THAT ITEM IS OFFERED FOR SALE AND FOR SUCH ADDITIONAL TIME AS MAY BE
DEFINED BY THE DEPARTMENT AND IN THE MANNER SPECIFIED BY THE DEPARTMENT.
5. NOTHING IN THIS SECTION SHALL PRECLUDE A RETAIL FOOD ESTABLISHMENT
FROM PROVIDING NUTRITION INFORMATION IN ADDITION TO THAT REQUIRED UNDER
THIS SECTION.
6. A RETAIL FOOD ESTABLISHMENT VIOLATES THE PROVISIONS OF THIS SECTION
IF THE ESTABLISHMENT: (A) FAILS TO LIST CALORIE CONTENT VALUES AS
REQUIRED BY THIS SECTION; (B) FAILS TO OBTAIN CALORIE CONTENT VALUE
ANALYSES AND MAINTAIN DOCUMENTATION OF SUCH ANALYSES AS REQUIRED BY THIS
SECTION; OR (C) KNOWINGLY OR RECKLESSLY LISTS ON MENUS, MENU BOARDS OR
FOOD ITEM TAGS CALORIE CONTENT VALUES THAT ARE MATERIALLY INCORRECT OR
MISLEADING.
7. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT A MUNICI-
PALITY OR OTHER UNIT OF LOCAL GOVERNMENT FROM ENACTING, AMENDING, MODI-
FYING OR REPEALING A LOCAL LAW, ORDINANCE, OR RESOLUTION THAT IMPOSES
STRICTER CALORIE OR MORE INCLUSIVE NUTRIENT LISTING OR POSTING REQUIRE-
MENTS ON RETAIL FOOD ESTABLISHMENTS UNDER ITS JURISDICTION, PROVIDED
THAT THE MINIMUM REQUIREMENTS OF THIS SECTION ARE MET.
S. 6438 4
S 4. Section 500 of the agriculture and markets law is amended by
adding a new subdivision 6 to read as follows:
6. (A) WHENEVER USED IN THIS SUBDIVISION, UNLESS OTHERWISE EXPRESSLY
STATED OR UNLESS THE CONTEXT OR SUBJECT MATTER REQUIRES A DIFFERENT
MEANING, THE FOLLOWING TERMS SHALL HAVE THE MEANINGS HEREINAFTER SET
FORTH OR INDICATED:
(I) "RETAIL FOOD SERVICE OPERATION" MEANS AN AREA OF A RETAIL FOOD
STORE, AS DEFINED BY PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION:
(A) WHERE FOOD IS PREPARED FOR SALE AT THE RETAIL LEVEL IN READY-TO-EAT,
INDIVIDUAL PORTIONS FOR CONSUMPTION ON OR OFF THE PREMISES; (B) WHICH IS
LOCATED WITHIN A RETAIL FOOD STORE THAT IS ONE OF A GROUP OF FIFTEEN OR
MORE RETAIL FOOD STORES DOING BUSINESS NATIONALLY AND OPERATING UNDER
COMMON OWNERSHIP OR CONTROL, OPERATING AS FRANCHISED OUTLETS OF A PARENT
BUSINESS, OR DOING BUSINESS UNDER THE SAME NAME; AND (C) WHICH OFFERS
SUBSTANTIALLY THE SAME MENU ITEMS AS ARE OFFERED IN SIMILAR AREAS OF AT
LEAST FOURTEEN OTHER RETAIL FOOD STORES CONTAINED IN THE GROUP DESCRIBED
IN CLAUSE (B) OF THIS SUBPARAGRAPH.
(II) "FOOD ITEM" MEANS A FOOD, AS DEFINED BY SECTION ONE HUNDRED NINE-
TY-EIGHT OF THIS CHAPTER, WHICH IS OFFERED FOR SALE BY A RETAIL FOOD
SERVICE OPERATION IN STANDARDIZED SIZES AND INTENDED FOR INDIVIDUAL
PORTION SERVICE.
(III) "MENU" MEANS A PRINTED LIST OR PRINTED PICTORIAL DISPLAY OF FOOD
ITEMS AND THEIR PRICES THAT ARE AVAILABLE FOR SALE FROM A RETAIL FOOD
ESTABLISHMENT, AND SHALL INCLUDE MENUS DISTRIBUTED OR PROVIDED OUTSIDE
OF THE ESTABLISHMENT.
(IV) "MENU BOARD" SHALL MEAN ANY LIST OR PICTORIAL DISPLAY OF FOOD
ITEMS AND THEIR PRICES THAT IS POSTED AND VISIBLE WITHIN A RETAIL FOOD
SERVICE OPERATION.
(V) "MENU ITEM" SHALL MEAN ANY INDIVIDUAL FOOD ITEM, OR COMBINATION OF
FOOD ITEMS, THAT IS LISTED OR DISPLAYED ON A RETAIL FOOD SERVICE OPER-
ATION'S MENU OR MENU BOARD. THIS TERM DOES NOT INCLUDE: (A) TEMPORARY
ITEMS THAT ARE LISTED ON A MENU OR MENU BOARD FOR LESS THAN THIRTY DAYS
IN ONE CALENDAR YEAR; OR (B) CONDIMENTS AND SIMILAR ITEMS PLACED ON A
TABLE OR COUNTER FOR GENERAL USE OR OTHERWISE PROVIDED WITHOUT CHARGE.
(VI) "CALORIE CONTENT VALUE" MEANS THE NUMBER OF CALORIES IN A FOOD
ITEM OR MENU ITEM IN THE SIZE AND PORTION NORMALLY OFFERED FOR SALE, AS
DETERMINED PURSUANT TO A METHOD THAT COMPLIES WITH PARAGRAPH (E) OF THIS
SUBDIVISION.
(VII) "FOOD ITEM TAG" MEANS A TAG, LABEL OR PLACARD PLACED IN CLOSE
PROXIMITY TO A FOOD ITEM DISPLAYED FOR SALE BY A RETAIL FOOD SERVICE
OPERATION THAT IDENTIFIES THE ITEM.
(B) (I) FOR EACH MENU ITEM OFFERED FOR SALE BY A RETAIL FOOD SERVICE
OPERATION, THE TOTAL CALORIE CONTENT VALUE OF SUCH ITEM AS OFFERED FOR
SALE SHALL BE LISTED ON ALL OF THE OPERATION'S MENUS AND MENU BOARDS.
SUCH CALORIE CONTENT VALUE SHALL BE LISTED CLEARLY AND CONSPICUOUSLY,
ADJACENT TO OR IN CLOSE PROXIMITY TO THE APPLICABLE MENU ITEM SO THAT IT
IS CLEARLY ASSOCIATED WITH SUCH ITEM, AND IN A FONT AND FORMAT THAT IS
AT LEAST AS PROMINENT, IN SIZE AND APPEARANCE, AS THAT USED TO POST
EITHER THE NAME OR PRICE OF THE MENU ITEM.
(II) FOR MENU ITEMS OFFERED FOR SALE IN DIFFERENT FLAVORS OR VARIE-
TIES, THE RANGE OF CALORIE CONTENT VALUES SHOWING THE MINIMUM TO MAXIMUM
NUMBERS OF CALORIES FOR ALL FLAVORS AND VARIETIES OF THAT ITEM SHALL BE
LISTED FOR EACH SIZE OFFERED FOR SALE ON MENUS AND MENU BOARDS.
(III) FOR COMBINATIONS OF DIFFERENT FOOD ITEMS LISTED OR PICTURED AS A
SINGLE MENU ITEM, THE RANGE OF CALORIE CONTENT VALUES SHOWING THE MINI-
MUM TO MAXIMUM NUMBERS OF CALORIES FOR ALL COMBINATIONS OF THAT MENU
S. 6438 5
ITEM SHALL BE LISTED ON MENUS AND MENU BOARDS. IF THERE IS ONLY ONE
POSSIBLE CALORIE TOTAL FOR THE COMBINATION, THEN THAT TOTAL SHALL BE
LISTED ON MENUS AND MENU BOARDS.
(IV) WHEN A FOOD ITEM IS DISPLAYED FOR SALE WITH A FOOD ITEM TAG, SUCH
FOOD ITEM TAG SHALL INCLUDE THE CALORIE CONTENT VALUE FOR THAT FOOD ITEM
IN A FONT AND FORMAT THAT IS AT LEAST AS PROMINENT, IN SIZE AND APPEAR-
ANCE, AS THAT USED TO IDENTIFY THE ITEM.
(C) CALORIE CONTENT VALUES (IN KCAL) REQUIRED BY THIS SUBDIVISION
SHALL BE BASED UPON A VERIFIABLE ANALYSIS OF A FOOD OR MENU ITEM, WHICH
MAY INCLUDE THE USE OF NUTRIENT DATABASES, LABORATORY TESTING, OR OTHER
RELIABLE METHODS OF ANALYSIS, AND SHALL BE ROUNDED TO THE NEAREST TEN
CALORIES FOR CALORIE CONTENT VALUES ABOVE FIFTY CALORIES AND TO THE
NEAREST FIVE CALORIES FOR CALORIE CONTENT VALUES OF FIFTY CALORIES AND
BELOW.
(D) DOCUMENTATION ESTABLISHING THE RESULTS OF ANY ANALYSIS CONDUCTED
PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION FOR A FOOD OR MENU ITEM
SHALL BE MAINTAINED BY THE RETAIL FOOD SERVICE OPERATION FOR AS LONG AS
THAT ITEM IS OFFERED FOR SALE AND FOR SUCH ADDITIONAL TIME AS MAY BE
DEFINED BY THE DEPARTMENT AND IN THE MANNER SPECIFIED BY THE DEPARTMENT.
(E) NOTHING IN THIS SUBDIVISION SHALL PRECLUDE A RETAIL FOOD SERVICE
OPERATION FROM PROVIDING NUTRITION INFORMATION IN ADDITION TO THAT
REQUIRED UNDER THIS SUBDIVISION.
(F) A RETAIL FOOD SERVICE OPERATION VIOLATES THE PROVISIONS OF THIS
SUBDIVISION IF THE OPERATION: (I) FAILS TO POST CALORIE CONTENT VALUES
AS REQUIRED BY THIS SUBDIVISION; (II) FAILS TO OBTAIN CALORIE CONTENT
VALUE ANALYSES AND MAINTAIN DOCUMENTATION OF SUCH ANALYSES AS REQUIRED
BY THIS SUBDIVISION; OR (III) KNOWINGLY OR RECKLESSLY LISTS ON MENUS,
MENU BOARDS OR FOOD ITEM TAGS CALORIE CONTENT VALUES THAT ARE MATERIALLY
INCORRECT OR MISLEADING.
S 5. This act shall take effect September 1, 2010, except that the
commissioner of health and the commissioner of agriculture and markets
are authorized to adopt, amend or repeal, on an emergency basis if
necessary, any regulation necessary to implement any provision of this
act on its effective date.