On May 18, 2017, New York City announced plans to begin enforcing its updated local menu labeling rule, just weeks after FDA announced the postponement of the compliance date for a similar federal menu labeling rule, from May 2017 until next year. These two actions potentially raise novel and significant issues of federal preemption.
More specifically the city’s planned enforcement measures could well be in conflict with an express federal preemption clause at 21 U.S.C. § 343-1, which states that “no State or political subdivision of a State may directly or indirectly establish . . . any requirement for nutrition labeling of food that is not identical to the requirement of section 343 (q) of this title [which contains restaurant menu labeling requirements].” On its face, the NYC menu labeling requirements differ in at least some material respects from those specified in the federal rule. For example, the city’s rule affects food service establishments that are part of chains with 15 or more locations in the United States, whereas the federal rule applies to chains with 20 or more locations. But more fundamentally, NYC will quite arguably be enforcing rules that Congress has determined should fall within the exclusive province of FDA.