S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3795--A

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2011
                               ___________

Introduced  by  M.  of  A.  MORELLE, PAULIN, CASTRO, GOTTFRIED, LANCMAN,
  COLTON, MILLMAN, ENGLEBRIGHT, DINOWITZ, JAFFEE,  DenDEKKER,  P. RIVERA
  --  Multi-Sponsored by -- M. of A. COOK, MAGNARELLI, MENG -- read once
  and referred to the Committee on Consumer Affairs  and  Protection  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT in relation to creating the menu nutritional  disclosure  act  of
  2012

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. This act shall be known and  may  be  cited  as  the  "menu
nutritional disclosure act of 2012".
  S  2.  1.    For purposes of this act, the following definitions shall
apply:
  (a) "Food facility" means a food facility in the state  that  operates
under  common ownership or control with at least 9 other food facilities
with the same name in the state that offer for  sale  substantially  the
same  menu items, or operates as a franchised outlet of a parent company
with at least 9 other franchised outlets with the same name in the state
that offer for sale substantially the same menu  items,  except  that  a
"food facility" does not include the following:
  (i) Certified farmer's markets.
  (ii) Commissaries.
  (iii) Licensed health care facilities.
  (iv) Mobile support units.
  (v) Restricted food service facilities.
  (vi) Retail stores in which a majority of sales are from a pharmacy.
  (vii) Vending machines.
  (b)  "Calorie  content information" means the total number of calories
per standard menu item, as that item is usually prepared and offered for
sale.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02175-03-1
              

A. 3795--A                          2

  (c) "Drive-through" means an area where  a  customer  may  provide  an
order  for and receive standard menu items while occupying a motor vehi-
cle.
  (d)  "Menu  board" means a posted list or pictorial display of food or
beverage items offered for sale by a food facility.  "Menu  board"  does
not include printed or pictorial materials for the purpose of marketing.
  (e) "Menu" means a printed list or pictorial display of food or bever-
age  items offered for sale by a food facility. "Menu" shall not include
printed or pictorial materials for the purpose of marketing.
  (f) "Food item tag" means a label or placard that identifies any  food
item  displayed  for  sale at a food facility. "Food item tag" shall not
include printed or pictorial materials for the purpose of marketing.
  (g) "Nutritional information" includes, but is not limited to, all  of
the  following, per standard menu item, as that item is usually prepared
and offered for sale:
  (i) Total number of calories.
  (ii) Total number of grams of carbohydrates.
  (iii) Total number of grams of saturated fat.
  (iv) Total number of milligrams of sodium.
  (h) "Point of sale" means the  location  where  a  customer  makes  an
order.
  (i)  "Standard  menu  item"  means a food or beverage item offered for
sale by a food facility through a menu, menu board, or food item tag  at
least  180 days per calendar year, except that "standard menu item" does
not include any of the following:
  (i) A food item that is customized on a case-by-case basis in response
to an unsolicited customer request.
  (ii) An alcoholic beverage, the labeling of which is not regulated  by
the federal food and drug administration.
  (iii)  A  packaged  food  otherwise  subject to the nutrition labeling
requirements of the federal Nutrition  Labeling  and  Education  Act  of
1990.
  (iv) A food item when served at a consumer self-service salad bar.
  (v)  A  food  or  beverage item when served at a consumer self-service
buffet.
  (vi) Condiments.
  (vii) Other items placed on counters or tables for use without  charge
to consumers.
  (j)  "Reasonable  basis"  means any reasonable means recognized by the
federal food and drug administration of determining nutritional informa-
tion, as well as calorie content information, for a standard menu  item,
as usually prepared and offered for sale, including, but not limited to,
nutrient databases and laboratory analyses.
  (k)  "Appetizer" means a food item that is generally served prior to a
food item that is generally regarded as the primary food item in a meal.
An "appetizer" includes a first course, starter, or small plate.
  (l) "Dessert" means a food item that is generally served after a  food
item  that  is  generally  regarded  as the primary food item in a meal.
"Dessert" includes, but is not limited to, cakes,  pastries,  pies,  ice
cream  and  food  items  that  contain ice cream, confections, and other
sweets.
  2. (a) Commencing July 1, 2013 and remaining in effect until  December
31,  2014,  inclusive,  every  food  facility shall disclose nutritional
information as required by paragraph (b) of this subdivision  or  comply
with the requirements of subdivision 3 of this section during this time.

A. 3795--A                          3

  (b)  (i)  In order to comply with paragraph (a) of this subdivision, a
food facility that does not provide sit-down service shall disclose  the
information in a clear and conspicuous manner on a brochure that is made
available  at  the  point of sale prior to or during the placement of an
order.  A food facility that provides sit-down service shall provide the
nutritional information in a clear and conspicuous size and typeface  on
at least one of the following:
  (1) A brochure available on the table.
  (2) A menu next to each standard menu item.
  (3)  A  menu, under an index section that is separate from the listing
of standard menu items.
  (4) A menu insert.
  (5) A table tent on the table.
  (ii) Notwithstanding subparagraph (i) of this paragraph, a food facil-
ity that has a drive-through area and uses a menu board  to  display  or
list standard menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information in a clear
and  conspicuous  manner on a brochure or other printed material that is
available upon request, and shall conspicuously display a notice at  the
point  of  sale  that  reads: "NUTRITIONAL INFORMATION IS AVAILABLE UPON
REQUEST" or other similar statement that  indicates  the  disclosure  of
nutritional information is available upon request.
  3. (a) On and after January 1, 2015, every food facility that provides
a  menu  shall  disclose calorie content information for a standard menu
item next to the item on the menu in a size and typeface that  is  clear
and conspicuous.
  (b)  On  and  after  January 1, 2015, every food facility that uses an
indoor menu board shall disclose calorie content information for a stan-
dard menu item next to the item on the menu board in a size and typeface
that is clear and conspicuous.
  (c) On and after January 1, 2015, every food facility that uses a food
item tag as an alternative to a menu or menu board to describe a  stand-
ard  menu  item  that is displayed for sale in a display case within the
food facility shall disclose calorie content information for that stand-
ard menu item on the food item tag for that item in a size and  typeface
that is clear and conspicuous.
  (d)  On  and  after  January  1,  2015, every food facility that has a
drive-through area and uses a menu board to  display  or  list  standard
menu items at the point of sale shall, for purposes of the drive-through
area  only,  disclose the nutritional information for each standard menu
item in a clear and conspicuous manner on a brochure  or  other  printed
material that is available upon request, and shall clearly and conspicu-
ously  display  a  notice  at the point of sale that reads: "NUTRITIONAL
INFORMATION IS AVAILABLE UPON REQUEST" or other similar  statement  that
indicates  the  disclosure  of nutritional information is available upon
request.  If a food facility subject to this paragraph discloses  nutri-
tional  information  in  the  manner  described in paragraph (b) of this
subdivision, the food facility shall be deemed to be in compliance  with
this paragraph.
  4.  For  purposes  of subdivision 3 of this section, the disclosure of
calorie content information on a menu or menu board next to  a  standard
menu  item  that is a combination of at least two standard menu items on
the menu or menu board, shall, based upon all possible combinations  for
that standard menu item, include both the minimum amount of calories for
the calorie count information and the maximum amount of calories for the

A. 3795--A                          4

calorie count information. If there is only one possible total amount of
calories, then this total shall be disclosed.
  5.  For  purposes  of subdivision 3 of this section, the disclosure of
calorie content information on a menu or menu board next to  a  standard
menu  item that is not an appetizer or dessert, but is intended to serve
more than one individual, shall include both of the following:
  (a) The number of individuals intended to be served  by  the  standard
menu item.
  (b)  The  calorie  content  information per individual serving. If the
standard menu item is a combination of at least two standard menu items,
this disclosure shall, based upon all  possible  combinations  for  that
standard  menu item, include both the minimum amount of calories for the
calorie count information and the maximum amount of calories.  If  there
is  only one possible total amount of calories, then this total shall be
disclosed.
  6. For beverage items, a range of calorie  count  information  may  be
provided,  which  includes  both  the minimum amount of calories for any
beverage item and the maximum amount of calories.
  7.   The  nutritional  information  and  calorie  content  information
required  by  this  act  shall  be  determined  on a reasonable basis. A
reasonable basis determination of nutritional  information  and  calorie
content  information shall be required only once per standard menu item,
provided that portion size is reasonably consistent and the food facili-
ty follows a standardized recipe and trains to a  consistent  method  of
preparation.
  8.  Menus and menu boards may include a disclaimer that indicates that
there may be variations in nutritional content across servings, based on
variations in overall size and quantities of ingredients, and  based  on
special ordering.
  9.  This  act  shall  not be construed to create or enhance any claim,
right of action, or civil liability that did not previously exist  under
state  law  or limit any claim, right of action, or civil liability that
otherwise exists under state law. No private right of action shall arise
out of this act. The only enforcement mechanism of this act shall be the
local enforcement agency.
  10. This act shall not be construed to preclude any food facility from
voluntarily  providing  nutritional  information  in  addition  to   the
requirements of this act.
  11.  To  the  extent consistent with federal law, this act, as well as
any other state law that regulates the disclosure of nutritional  infor-
mation, is a matter of statewide concern and occupies the whole field of
regulation regarding the disclosure of nutritional information by a food
facility  as well as content required to be posted on menus, menu boards
and food item tags. No ordinance or regulation  of  a  local  government
shall  regulate  the  dissemination  of  nutritional  information or the
content required to be placed on menus, menu boards or food item tags by
a food facility. Any ordinance or regulation that violates this prohibi-
tion is void and shall have no force or effect.
  12. Commencing July 1, 2013, a food facility that violates this act is
guilty of an infraction, punishable by a fine of  not  less  than  fifty
dollars  or  more  than five hundred dollars, which may be assessed by a
local enforcement agency. However, a food facility may not be  found  to
violate  this  act  more than once during an inspection visit.  Notwith-
standing the penal law or any other provision of law to the contrary,  a
violation of this act shall not constitute a misdemeanor.

A. 3795--A                          5

  13. Within 180 days after the effective date of this act, the New York
state  department  of  health  shall promulgate regulations defining the
specific requirements that constitute substantial compliance  with  this
act by food facilities.
  14. If any provision of this act or the application thereof is for any
reason  held  invalid,  ineffective,  or  unconstitutional by a court of
competent jurisdiction, the remainder of this act shall not be  affected
thereby, and to this end, the provisions of this act are severable.
  S 3. This act shall take effect immediately.