Scott Beizaie is a Senior Counsel in our Los Angeles office
California restaurant operators should be aware of the provisions of the trans fats ban and the menu labeling laws going into effect on January 1, 2011, and how the new requirements may affect their operations.
California's Trans Fats Ban
As California's trans fats ban law enters its second year, operators of California restaurants and retail food facilities, including food and beverage facilities situated within hotels or resorts, should – notwithstanding the very limited and sporadic enforcement of the law thus far – be aware of additional restrictions that go into effect at the start of the new year.
Since it went into effect on January 1, 2010, the law has imposed the following requirements: (1) no oil, shortening or margarine containing artificial trans fats for use in spreads or for frying – except for the deep frying of yeast dough or cake batter – may be stored, distributed, served or used in the preparation of any food within a restaurant or retail-level food facility in California; and (2) every such facility must maintain on its premises the governmentally mandated nutritional label for any food or food additive which contains, or is, fat, oil or shortening, for as long as this item is stored, distributed, served or used by the facility in the preparation of food within the facility.
As of January 1, 2011, no food of any kind containing artificial trans fats may be stored, distributed, served or used in the preparation of any food within a food facility in California.
A food is considered to contain artificial trans fats if it contains vegetable shortening, margarine or any kind of partially hydrogenated vegetable oil, unless its governmentally mandated nutritional label lists the trans fat content as less than 0.5 grams per serving.
There is an exception for food sold or served in a manufacturer's original, sealed package. This includes, for example, individually packaged items like mayonnaise or margarine that an operator might serve or make available to patrons.
Violation of the rule will carry a fine of not less than $25 and not more than $1,000 per violation.
California's Menu Labeling Law
New requirements relating to California's much-celebrated menu labeling law also go into effect on January 1, 2011 – although the enforceability of the law is very much in question.
This statute applies to any food facility located in California that operates under common ownership or control with at least 19 other food facilities with the same name in the state that offer for sale substantially the same menu items; it also applies to any food facility that operates as a franchised outlet of a parent company, with at least 19 other franchised outlets with the same name in the state that offer for sale substantially the same menu items. This includes licensed or franchised restaurants located within hotels or resorts which may be operated by the hotel operator under a license or franchise arrangement, provided the other criteria listed above are satisfied. There is a limited exception applicable to certain bed-and-breakfast facilities.
Since July 1, 2009, each such facility that does not provide sit-down service has been required to make available a brochure at the point of sale which includes, regarding each standard menu item: (1) the total number of calories; (2) the total number of grams of carbohydrates; (3) the total number of grams of saturated fat; and (4) the total number of milligrams of sodium. It must also include on its drive-through menu board a notice regarding the availability of such brochure. Facilities providing sit-down service have been required to provide such information either in a brochure or table tent at each table, or as a menu insert.
As of January 1, 2011 – except in connection with drive-throughs – the brochure requirement is eliminated; instead, each facility to which the law applies must display calorie content (but not the additional information) for each standard menu item on its menus, its indoor menu boards, or on display tags used in conjunction with standard menu items displayed in display cases. The requirements for drive-throughs remain unchanged.
It should be noted that this California law, which was enacted in September 2008 and was among the first of its kind nationwide, was arguably preempted by federal menu labeling legislation adopted as part of the sweeping healthcare reform package on March 23, 2010. There are many similarities between the two statutes, but there are also several significant differences. These include: (1) the threshold for applicability (the federal law applies to chains having 20 locations anywhere, as compared to 20 just within California); (2) the amount and type of information which must be provided; and (3) the treatment of labeling in connection drive-throughs and vending machines.
In guidance materials it issued on August 24, 1010, the U.S. Food and Drug Administration, which is charged with implementing and enforcing the federal statute, advised that it would not enforce the federal law until it has solicited sufficient feedback from industry and issued final interpretive guidance materials. Final guidance is expected this month. By the terms of the statute itself, implementing regulations must be proposed no later than March 23, 2011.
In the meantime, the requirements of California's menu labeling law may continue to apply. While the FDA has taken the position that the federal law preempts state and local laws which impose menu labeling restrictions on restaurant chains, according to an October 2010 update issued by the influential California Restaurant Association, local regulators in California are refusing to concede preemption and are continuing to enforce the California law. Therefore, chains operating under the assumption that the California law has been preempted and the federal law is, for the time being, not being enforced risk local fines and penalties.
Violations of the California statute are considered infractions punishable by a fine ranging from $50 to $500. No private right of action is created by the statute, and the only enforcement mechanism is enforcement by a local health department.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.