Lynn Silver, MD, MPHCathy Nonas, MS, RDThomas Merrill, JD
May 12, 2009
Calorie Labeling Food Procurement
Guidelines Daycare Regulations
Pertaining to Physical Activity and Nutrition
Stairwell Prompts SPARK, Shape Up, School PE Healthy Bodegas, Health
Bucks Food & Fitness Partnership Green Cart Vegetable
Permits Calorie Awareness
Campaign
DOHMH has jurisdiction to regulate all matters affecting health in NYC
Board of Health may amend NYC Health Code or publish additional provisions for security of life or health
NYC Health Code has the force and effect of law
DOHMH program will articulate need for new law
Program and OGC draft proposed rule DOHMH asks Board of Health to
approve proposed rule for publication Public comments are received and
responded to DOHMH asks Board of Health to
adopt rule
66.4 million
25.1 million
31.1%
15.1%
0
20
40
60
80
100
1978 2001
# o
f O
be
se
Ad
ult
s in
U.S
. (m
illio
ns
)
0%
5%
10%
15%
20%
25%
30%
35%
% o
f O
be
se
Ad
ult
s in
U.S
.
Number (millions) Percent
Data from CDC.
1.8 million more obese U.S. adults each year4% annual increase
1,233,000
987,000
21.7%
18.2%
900
1000
1100
1200
1300
2002 2004
# o
f O
be
se
Ad
ult
s in
NY
C (
tho
us
an
ds
)
17%
18%
19%
20%
21%
22%
% o
f O
be
se
Ad
ult
s in
NY
C
Number (thousands) Percent
Data from Community Health Surveys, 2002 & 2004.
0 0.5 1 5
12 25 125
04
8
12
Excess intake (% total)
Excess intake (kcal/d)
Rosenbaum M et al. N Engl J Med. 1997;337:396-408.
1 million
Energyintake(kcal/y)
1 million
Energyexpenditure
(kcal/y)
Change in body fat (lb/y)
Since the 1960s, expenditures for food eaten away from home have steadily increased.
Preliminary data from 7,308 customers purchasing for themselves only at 11 chains serving lunch
1977-1978 1994-1996
419
171
131
497
284
191
721 972
Increase of 251 calories (35%)
▪ The NLEA requires that a nutrition fact panel appear on the labeling of packaged foods
▪ The NLEA labeling requirements do not apply to food served in restaurants (21 USC 343(q)(5)(A)(i))
▪ When eating out, diners usually don’t have access to information that would allow them to make healthier choices
Crispy Classic
Premium Grilled
Southern Style Crispy
530 530 400
Regular food item
Calories and % daily
intake*
Larger food item
Calories and % daily intake*
Calorie difference
Item larger by
Regular cheese-burger
36018%
Triple Whopper w/cheese
1,23061.5%
870 242%
Chocolate shake(12 oz.)
44022%
Chocolate shake(32 oz.)
1,16058%
720 164%
Big Breakfast
72036%
Deluxe Breakfast
1,40070%
680 94%
* Based on recommended 2,000 daily calorie intake
To find out What patrons buy, and how many
calories What calorie information they saw
Conducted March-June, 2007Brief survey and collected receipts> 7000 customers from 275
randomly selected restaurants from 11 fast food chains
743
695
634
726
550
600
650
700
750
800
1 2 3 4
Did Not See Saw Cals Effect No Effect
Ca
lori
es
con
sum
ed
Who should have to post?Restaurants who had calorie information
What nutritional information should they have to post?Calories are most important when dealing with obesity
Where should the information have to be posted?On the menu or menu board
Approved for Publication by the Board of Health in September 2006
Received overwhelming support in public comment period
Enacted by the Board of Health in December 2006
Would have required any restaurant that had otherwise published calorie information to put that information at the point of purchase as of July 1, 2007
Federal Preemption Claim: proposed law is preempted by federal
regulation of nutrient content claims under NLEA
Compelled Speech, 1st Amendment Claim: proposed law violates commercial free
speech
(a) “No State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce – …
(4) any requirement for nutrition labeling of food that is not identical to the requirement of section 343(q) of this title, except a requirement for nutrition labeling of food which is exempt under subclause (i) … of section 343(q)(5)(A) of this title, …”
21 USC § 343-1(a)(4)
“The bill does not preempt any State nutrition labeling requirements for restaurants.”
136 Cong. Rec. S16607-02, S16608 (10/24/90) (Sen. Metzenbaum)
“State requirements for the nutrition labeling of [restaurant foods] would not be preempted.”
FDA, Guidance for Industry, “A Labeling Guide for Restaurants and Other Retail Establishments Selling Away-From-Home Foods” (4/2008) (available at http://www.cfsan.fda.gov/dms/labrguid.htmlat), question 106
The statement “100 calories” is a nutrient content claim
The NLEA’s provisions about nutrient content claims apply to restaurants
The NLEA similarly preempts local regulation of nutrient content claims
A nutrition claim “made in the label or labeling of food which expressly or by implication –(A) characterizes the level of any nutrient”
21 USC § 343(r)(1)
“An expressed nutrient content claim is any direct statement about the level (or range) of a nutrient in food, e.g., ‘low sodium’ or ‘contains 100 calories.’”
21 C.F.R. § 101.13(b)(1)
Statements as to nutrient amounts are nutrient content claims when they are voluntarily made, but they are not nutrient content claims when they are mandated.
New York State Restaurant Association v. New York City Board of Health, 509 F. Supp.2d 351, 360-361 (SDNY 2007) (“NYSRA I”)
Although NYSRA I held that States may mandate calorie labeling, because Health Code § 81.50 applied only to restaurants that had voluntarily provided calorie information, it was found to be preempted.
In January 2008, the Board of Health adopted an amended version of Health Code § 81.50 that mandates labeling by any restaurant that is part of a chain of 15 or more nationally
April 16, 2008 – District Court rules in favor of defendants
April 18, 2008 – District Court denies NYSRA’s motion for stay of enforcement pending appeal
April 29, 2008 – Second Circuit denies motion for stay pending appeal and directs NYSRA to ask the FDA to file an amicus curiae brief pending appeal
May 29, 2008 – FDA files brief supporting City’s position June 12, 2008 – appeal heard by the Second Circuit July 19, 2008 – DOHMH begins seeking fines for
violations of Health Code § 81.50 February 17, 2009 – Court of Appeals affirms Judge
Holwell in NYSRA v. NYCBOH, 556 F.3d 114 (2d Cir. 2009)
Subway Menu Board
July 2007
Auntie Anne’s Menu Board
July 2007
Starbucks, 2008
Chipotle, 2008
McDonald’s; July 21, 2008
“Some restaurants have had their own sticker shock and started offering lighter options. Cosi had a nutritionist look for ways to save on every item. Switching to low fat mayo brought the Cosi Club from nearly 800 calories to 447… “Having to post this information in New York really focused us on paying attention as well” says Chris Carroll, the chain’s chief marketing officer”
- Wall Street Journal July 29, 2008
If information is used similar to how used in Subway survey, over the next 5 years: at least 150,000 fewer
New Yorkers would be obese, leading to
at least 30,000 fewer cases of diabetes,
and many other health benefits
Other Jurisdictions Follow Suit
San Francisco, CASanta Clara, CAPhiladelphia, PAKing County, WAWestchester County, NYSuffolk County, NYConnecticut, Massachusetts and New
York are all considering
What’s Next?
State legislation ala California’s Senate Bill 1420 preempting local menu labeling requirements?
Federal legislation: MEAL or LEAN?
Take Aways
Local initiatives can have national effect
Local initiatives can lead to federal action
Alliances are key Implementation: learning to live with
the restaurant industry
