Well Done

After years of compliance date delays, New York City and FDA appear to have agreed to begin enforcing rules that would require chain restaurants and other establishments to post certain calorie and nutrition information in their stores on May 7, 2018. FDA has delayed enforcement of its federal menu labeling rule since 2015, and in response to the latest postponement, NYC announced that the city would begin to enforce its own similar menu labeling rules in the interim. However, the city and federal authorities came to an agreement on August 25 when NYC and FDA both agreed to the May 7, 2018 compliance date.

NYC began requiring calorie labeling disclosures in chain establishments when it promulgated its original menu labeling rule in 2008. The city updated the rule, yet deferred its enforcement in anticipation of an impending 2015 compliance date for the federal menu labeling regulation. However, FDA postponed the compliance date of the federal rule three times— first to December 2016, then to May 2017, and finally to May 2018.

In the notice postponing the compliance date to May 2018, FDA called into question its intention to ever enforce the current iteration of the regulation. The agency stated that “fundamental questions and concerns with the final rule suggest[ed] that critical implementation issues . . . may not have been fully understood.”1 FDA pointed to issues regarding signage for self-service foods, distinguishing between menus and advertising, calorie variations, and applicability of the regulation to various types of establishments. Ultimately, such statements suggested a flagging commitment to the current federal menu labeling regulation, and the potential for new notice-and-comment rulemaking altogether. In response to such rhetoric and the repeated delays, in May 2017 NYC announced its plan to begin enforcing its own menu labeling rule in September.

Subsequently, in July 2017, restaurant and convenience store trade groups filed an injunction against NYC to prevent the city from enforcing its rule before the May 2018 compliance date for the federal regulation.2 The trade groups argued that the federal regulation preempted the city’s rule. Federal preemption is the doctrine that federal law “preempts” or supersedes state law when the laws are in conflict.

The Department of Justice (DOJ) filed a Statement of Interest in the lawsuit on August 14 in support of the trade groups and likewise argued that NYC is prohibited from enforcing its menu labeling rule on preemption grounds. Specifically, the DOJ asserted that the city’s August 2017 compliance date was in conflict with the federal law’s May 2018 compliance date. The Statement of Interest states: “Despite the unambiguity of Congress’ intent to create a national regime of menu labeling requirements, the City proposes to set its own unilateral compliance date that is in conflict with the FDA’s considered decision about the appropriate deadline. The City is expressly preempted from doing so.”

The case has reached at least a temporary resolution. On August 25, NYC agreed in a stipulation filed with the lawsuit that it would not seek fines or other sanctions against businesses for noncompliance with its menu labeling rule prior to May 7, 2018, and the trade associations agreed to encourage their members that were already complying with the city rule to continue to do so. Notably, in a press release issued the same day the agreement was signed, FDA announced that it would provide “additional, practical guidance on the menu labeling requirements by the end of this year.”3 The agency further stated that it has “been diligently working to address the comments [it has] received” and has established “new policy steps [that] should allow covered establishments to implement the requirements by next year’s compliance date.”

The agency’s recent press release is a marked departure from its prior statements on the federal menu labeling rule. In a previous blog post, Menu Labeling and Passive Federal Preemption, we asked whether FDA or any other federal agency could indefinitely preclude state action while refusing to impose corresponding obligations of its own. The answer, at least here, appears to be “no.” In this context it should be emphasized that the lawsuit between NYC and the trade groups is still pending, and per the stipulation it will only be dismissed “if the compliance date of the [federal menu labeling rule] takes effect on or prior to May 7, 2018.” Accordingly, if FDA does not live up to its most recent promise to enforce the federal menu labeling rule, the litigation will be reactivated. What this suggests more broadly is that federal delay of a federal agency’s preemptive authority creates a vacuum that some combination of state authority, private litigants, and the courts will rush to fill.