On May 18, 2017, New York City announced plans to begin enforcing its updated local menu labeling rule,[1] just weeks after FDA announced the postponement of the compliance date for a similar federal menu labeling rule, from May 2017 until next year.[2] 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.

NYC was the first jurisdiction to require calorie labeling disclosures in covered facilities when it promulgated its original menu labeling rule in 2008.[3] In 2015 the city updated its rule to the current version.[4] In late 2014, FDA issued a final federal rule on menu labeling, which originally required compliance with the federal rule by December 2015.[5] NYC consequently delayed enforcement of its own menu labeling requirements in anticipation of the federal rule’s impending compliance date.[6]

The compliance date for the federal menu labeling rule has been repeatedly delayed—first to December 2016, then to May 2017, and now to May 2018. In its preamble to the interim final rule providing the extension, issued only days before the pending effective date, FDA stated, “[W]e are taking this action to enable us to consider how we might further reduce the regulatory burden or increase flexibility while continuing to achieve our regulatory objectives, in keeping with the Administration’s policies.”[7]

In this same document, FDA also expressed some substantive concerns with the current iteration of the federal menu labeling requirements. The agency stated that “critical implementation issues, including some related to scope, may not have been fully understood and the agency does not want to proceed if we do not have all of the relevant facts on these matters.” FDA also stated that it has continued to receive questions about calorie disclosure signage for self-service foods, such as buffets and grab-and-go foods. These and other issues are now subject to another round of public comment, thereby placing not just the effective date of the rule into question, but its underlying substance as well.

Presumably in response to FDA’s announcement, NYC has decided to enforce its updated menu labeling rules, thereby raising the preemption dilemma. The issue could now arise in the context of either an affirmative challenge to the NYC law or a defense to any NYC enforcement action. In any such dispute the particulars of FDA’s recent announcement would appear to be an important variable, for in announcing its delay, FDA did not couple it with an affirmation of the pending status quo. To the contrary, it brought many of the rule’s particulars, and perhaps its core validity as well, into public question.

This raises the more general question on the ongoing viability of what might be termed passive federal preemption. Can, as a general proposition, FDA or any other federal agency rely upon a congressional mandate to preclude state action (or in this case, city action), and then fail to impose corresponding obligations of its own? Can the delay of such an action go on indefinitely? Given the pendency of other issues such as GMO disclosure where some of these same questions may arise, this is an issue of no small consequence to the food industry.