Following the Food and Drug Administration (FDA) decision to require declaration of trans fat in the Nutrition Facts Panel, trans-fat-containing foods have received increased attention at the state and local level. Last fall, New York City (NYC) banned the sale of many foods made with “artificial” (i.e., non-naturally occurring) trans fat in restaurants and similar foodservice facilities. Last week, a similar ban was signed into law in Philadelphia. Now, other cities and states across the country seem poised to follow the lead of NYC and Philadelphia. These developments are of great consequence to foodservice operators and their suppliers in the food industry given the time, resource, and supply issues involved in moving away from trans-fat-containing oils without compromising taste and quality.

It has been just over two months since the NYC Board of Health voted to ban trans fat from the city’s restaurants, but already, as outlined in this update, policymakers in at least 18 states and five other major cities have announced their own plans to reduce or eliminate trans fat in their jurisdictions. Certainly, not all of these attempts will be successful, but it is equally apparent that, barring legal challenges to these actions, trans-fat-containing foods will begin to face an increasingly complicated regulatory environment as they are marketed across the country

The NYC and Philadelphia Bans

Last year, the NYC Board of Health made headlines when it proposed to amend the city’s Health Code to prohibit all foodservice establishments from serving foods containing artificial trans fat. The proposal dictated that no foods containing more than 0.5 gram artificial trans fat per serving “be stored, distributed, held for service, used in preparation of any menu item, or served in any food service establishment,” exempting only “foods served in a manufacturer’s original sealed packaging." The ban would take effect in two stages—the first for all cooking oils, margarines, and shortenings, and the second for all other foods.

At a public meeting and through a public comment period, the Board received numerous comments both in support of and in opposition to the proposal. According to the Board, “unqualified support” came from “numerous leading national and local professional societies, academic institutions, and local hospitals and advocacy groups, including the American Medical Association, National Hispanic Medical Association, American College of Cardiology, American Cancer Society,

American Diabetes Association, American Academy of Pediatrics, New York Academy of Medicine, Columbia University Medical Center, Harvard University, New York University, Institute for Urban Family Health, and Northern Manhattan Perinatal Partnership.” The National Restaurant Association, the National Council of Chain Restaurants, and other industry representatives opposed the proposal, citing both practical and legal concerns.

On December 5, 2006, the Board voted unanimously to adopt the proposal. The ban becomes effective for all cooking oils, margarines, and shortenings (except for those used for deep frying yeast dough or cake batter) on July 1, 2007, and for all other foods on July 1, 2008. There will be a three-month grace period with no fines for violations following each effective date. Building upon the success in NYC, the Philadelphia City Council unanimously approved a ban nearly identical to the NYC ban. Last week, Mayor John Street signed the ban into law. Like the NYC ban, the Philadelphia ban will take effect in two phases, with a September 1, 2007 effective date with respect to oils, shortenings, and margarines used for frying or in spreads and a September 1, 2008 effective date for all other foods. It is not yet clear if Philadelphia, like NYC, will provide a compliance grace period.

Others Following the NYC and Philadelphia Lead

Following the NYC and Philadelphia actions, officials in other major U.S. cities are now actively considering similar trans fat bans. For example, the Cleveland City Council has endorsed a ban; the Boston Public Health Commission is studying the merits and feasibility of a ban; and, in Chicago, there is a proposal to ban trans fats, at least at the larger chain restaurants. Notably, after determining that state law prevents a local trans fat ban in California, Los Angeles is implementing a program to encourage its food service establishments to voluntarily cease serving food containing trans fat.

Throughout the country, state legislators, too, are attempting to ban or restrict trans fats. New legislative sessions have recently convened in most states, and already in at least 18 of the states, trans fat legislation has been introduced. In California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, South Carolina, and Tennessee bans similar to the NYC and Philadelphia bans have been proposed. In Florida, Mississippi, Maryland, California, Tennessee, Texas, and Virginia, bills would restrict or eliminate trans fats in foods served in schools. And, in Florida, Illinois, Michigan, New Mexico, South Carolina, and Tennessee, bills would require restaurants to post notices or warnings when foods served in establishments contain trans fat.

Prospects/Prognosis

With the continuing focus on trans fat in the media and now from state and local politicians, it has become apparent that initiatives designed to regulate foods containing trans fat will continue at the state and local level. Not only will local actions add pressure to those seeking to convert to transfat- free alternatives, but the food industry may now face a patchwork of differing requirements. Leaving aside the legal merit of such local actions, the practical effect of the trans fat bans will be significant for those companies that cannot move away from the trans fat cooking oils now used throughout the industry.

Food marketers, whether foodservice operators or food processors, also face challenges in communicating the absence of trans fat in reformulated products. Although the FDA has not yet acted to define claims such as “low trans fat,” many generally view a statement such as “0g trans fat” as appropriate and permissible in advance of agency rulemaking. Marketers also must take into account the nutritional impact of the finished food, especially when the trans fat is removed by, for example, using replacement oils that increase saturated fat content.

Many national chain restaurants already have said that they will voluntarily remove or reduce trans fat from their fare. In many cases, these companies have reported that the ability to find an appropriate substitute oil took several years. Two major theme park operators, a large hotel chain, an institutional foodservice operator, and several universities also have announced plans to reduce or eliminate trans fat. These announcements follow efforts of many packaged food manufacturers to reformulate their products to reduce or eliminate trans fat. Food processors are likely now seeing increasing demand from their foodservice customers for various foods that contain no trans fat.