In 2008, New York City passed the first calorie disclosure rule for restaurants and in 2015, the city amended it rule to match federal requirements. As we reported on this blog, FDA extended the menu labeling compliance date to May 8, 2018. In response to FDA’s delayed compliance date, New York City announced that its Health Department would begin enforcement of the city’s Health Code’s calorie labeling requirements on May 22, 2017, and would issue Notices of Violation subject to fines for any food service establishments that are not compliant beginning on August 21, 2017.

The National Restaurant Association (NRA), the Food Marketing Institute (FMI), the National Association of Convenience Stores (NACS), and the New York Association of Convenience Stores (NYACS) filed suit in the U.S. District Court for the Southern District of New York on July 14, 2017, to block the city’s enforcement of its’ menu-labeling standard prior to the May 2018 federal compliance date. The suit contends that New York City’s enforcement is pre-empted by federal law.

“New York City can’t jump the gun and start imposing fines when FDA hasn’t even figured out how disclosures should be made,” said Lyle Beckwith, Senior Vice President of Government Relations for NACS, in a NRA release about the lawsuit. Jennifer Hatcher, FMI Chief Public Policy Officer, further explained, “New York City’s actions threaten interstate commerce and would introduce unneeded elements of confusion into the food retail marketplace.”