lynn silver, md, mph cathy nonas, ms, rd thomas merrill, jd may 12, 2009

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  • Lynn Silver, MD, MPH Cathy Nonas, MS, RD Thomas Merrill, JD May 12, 2009
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  • 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
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  • 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
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  • 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
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  • Epidemic of Obesity in the U.S. Data from CDC. 1.8 million more obese U.S. adults each year 4% annual increase
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  • Data from Community Health Surveys, 2002 & 2004.
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  • 0 0.5 1 5 1225125 Cumulative Effect of Small Daily Imbalances in Energy Intake on Body Fat Mass 0 4 8 12 Excess intake (% total) Excess intake (kcal/d) Rosenbaum M et al. N Engl J Med. 1997;337:396-408. 1 million Energy intake (kcal/y) 1 million Energy expenditure (kcal/y) Change in body fat (lb/y)
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  • Since the 1960s, expenditures for food eaten away from home have steadily increased.
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  • Preliminary data from 7,308 customers purchasing for themselves only at 11 chains serving lunch
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  • 1977-1978 1994-1996 419 171 131 497 284 191 721 972 Increase of 251 calories (35%)
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  • 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 dont have access to information that would allow them to make healthier choices
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  • Crispy Classic Premium Grilled Southern Style Crispy 530 400
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  • Regular food item Calories and % daily intake* Larger food item Calories and % daily intake* Calorie difference Item larger by Regular cheese- burger 360 18% Triple Whopper w/cheese 1,230 61.5% 870242% Chocolate shake (12 oz.) 440 22% Chocolate shake (32 oz.) 1,160 58% 720164% Big Breakfast 720 36% Deluxe Breakfast 1,400 70% 68094% * Based on recommended 2,000 daily calorie intake
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  • To find out What patrons buy, and how many calories What calorie information they saw Conducted March-June, 2007 Brief survey and collected receipts > 7000 customers from 275 randomly selected restaurants from 11 fast food chains
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  • Did Not See Saw CalsEffectNo Effect Calories consumed
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  • 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
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  • 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
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  • 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
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  • (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)
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  • The bill does not preempt any State nutrition labeling requirements for restaurants. 136 Cong. Rec. S16607-02, S16608 (10/24/90) (Sen. Metzenbaum)
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  • 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, question 106
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  • The statement 100 calories is a nutrient content claim The NLEAs provisions about nutrient content claims apply to restaurants The NLEA similarly preempts local regulation of nutrient content claims
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  • 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)
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  • 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)
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  • 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)
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  • 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
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  • April 16, 2008 District Court rules in favor of defendants April 18, 2008 District Court denies NYSRAs 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 Citys 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)
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  • Some Compliance Before Second Lawsuit Subway Menu Board July 2007 Auntie Annes Menu Board July 2007
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  • Starbucks, 2008
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  • Chipotle, 2008
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  • McDonalds; July 21, 2008
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  • 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 chains chief marketing officer - Wall Street Journal July 29, 2008
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  • 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
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  • San Francisco, CA Santa Clara, CA Philadelphia, PA King County, WA Westchester County, NY Suffolk County, NY Connecticut, Massachusetts and New York are all considering
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  • State legislation ala Californias Senate Bill 1420 preempting local menu labeling requirements? Federal legislation: MEAL or LEAN?
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  • Local initiatives can have national effect Local initiatives can lead to federal action Alliances are key Implementation: learning to live with the restaurant industry
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