Bill S6437-2009

Relates to prohibiting the sale or use of artificial trans fats in food service establishments, mobile food service establishments and retail food stores

Relates to prohibiting the sale or use of artificial trans fats in food service establishments, mobile food service establishments and retail food stores.

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  • Jan 11, 2010: REFERRED TO HEALTH

Memo

 BILL NUMBER:  S6437

TITLE OF BILL :

An act to amend the public health law and the agriculture and markets law, in relation to prohibiting the sale or use of artificial trans fats in food service establishments, mobile food service establishments and retail food stores

PURPOSE :

This bill prohibits the storage, use and sale of artificial trans fats in certain food establishments and retail stores as a public health measure.

SUMMARY OF PROVISIONS :

Section 1 of the bill amends Public Health Law (PHL) § 1351 to provide that places engaged in the preparation, sale or service of food for and to the general public must permit inspectors access to their facilities for the purpose of ascertaining whether the provisions of new PHL § 1356 are being observed.

Section 2 of the bill adds a new PHL § 1356 to provide that no food containing artificial trans fat shall be stored, distributed, held for service, used in preparation of any menu item, served or sold in food service establishments or mobile food establishments, as those terms are defined in the State Sanitary Code (SSC). The prohibition does not apply to: (I) foods that are served or sold directly to patrons in a manufacturer's original sealed package bearing a Nutrition Facts panel in the form required under the federal Nutrition Labeling and Education Act of 1990 (NLEA) or the associated regulations of the Food and Drug Administration (FDA); or (2) ingredients used or stored for the purpose of manufacturing such foods.

Section 2 of the bill also provides that a food shall be deemed to contain artificial trans fat if the food is labeled as, lists as an ingredient, or contains: (1) vegetable shortening or margarine, unless documentation acceptable to the Department of Health (DOH) demonstrates that such shortening or margarine does not contain partially hydrogenated vegetable oil; or (2) or any kind of partially hydrogenated vegetable oil. However, a food whose Nutrition Facts panel or other documentation from the manufacturer lists the trans fat content of the food as less than 0.5 grams per serving shall not be deemed to contain artificial trans fat.

Section 2 of the bill further provides that for as long as a food is stored, used, served or sold by a food service establishment or mobile food service establishment, the establishment must maintain documentation acceptable to DOH which establishes the food's artificial trans fat content.

Section 3 of the bill adds new Agriculture and Markets Law (AML) § 500(6) to provide that no food containing artificial trans fat shall be stored, distributed, held for service, used in preparation of any menu item, served or sold in food service establishments or retail food stores, as those terms are defined in the AML. The prohibition does not apply to: (1) foods that are served or sold directly to patrons in a manufacturer's original sealed package bearing a Nutrition Facts panel in the form required under the NLEA or the FDA's regulations; or (2) ingredients used or stored for the purpose of manufacturing such foods.

Section 3 of the bill also provides that a food shall be deemed to contain artificial trans fat if the food is labeled as, lists as an ingredient, or contains: (1) vegetable shortening or margarine, unless documentation acceptable to the Department of Agriculture and Markets (A&M) demonstrates that such shortening or margarine does not contain partially hydrogenated vegetable oil: or (2) any kind of partially hydrogenated vegetable oil. However, a food whose Nutrition Facts panel or other documentation from the manufacturer lists the trans fat content of the food as less than 0.5 grams per serving shall not be deemed to contain artificial trans fat.

Section 3 of the bill further provides that for as long as a food is stored, used, served or sold by a food service establishment or a retail food store, the establishment or store must maintain documentation acceptable to A&M which establishes the food's artificial trans fat content.

Section 4 of the bill provides that the bill takes effect: (1) 180 days after enactment with respect to oils, shortenings and margarines containing artificial trans fat that are used for frying or in spreads, and (2) one year after enactment with respect to oils or shortenings used for deep frying of yeast dough or cake batter and with respect to all other foods containing artificial trans fat. However, the Commissioner of Health and the Commissioner of Agriculture and Markets may promulgate any necessary regulations, on an emergency basis if necessary, prior to that date.

EXISTING LAW :

PHL § 12 provides for monetary penalties for violations of the PHL or any regulation promulgated thereunder, if no specific penalty is otherwise provided, in an amount of up to $2,000 per violation or in higher amounts in certain egregious situations.

PHL § 206(4) authorizes a penalty of up to $2,000 for a violation of the PHL or any regulation promulgated thereunder.

PHL § 309(1)(f) authorizes local boards of health to impose penalties for violations of the SSC.

PHL § 1350 authorizes the Commissioner of Health to inspect and supervise all public places in New York in which food is prepared, sold or served, although the Commissioner may designate persons to conduct such inspections.

PHL § 1351 requires persons in charge of any place engaged in the preparation, sale or service of food for and to the general public to permit inspectors access to their facilities for the purpose of ascertaining compliance with PHL §§ 1350 through 1353 and the SSC.

Part 14, Chapter I of the SSC, which appears at Title 10 of the New York Codes, Rules and Regulations (NYCRR), governs food service establishments and mobile food service establishments. 10 NYCRR § 14-1.20(a) defines a "food service establishment" as a place where food is prepared and intended for individual portion service, including the site at which the individual portions are provided, whether consumption occurs on or off the premises. The definition does not include food processing establishments, retail food stores, private homes, and food service operations where a distinct group such as a congregation, club or fraternal organization - mutually provides, prepares, serves and consumes the food.

10 NYCRR § 14-1.190 provides that a permit must be issued by the appropriate local health official before a food service establishment can be operated.



10 NYCRR § 14-1.30 defines "food" as any edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption.

10 NYCRR § 14-4.30(a) defines a "mobile food service establishment" as a self contained food service operation, located in a vehicle or a movable stand, self- or otherwise propelled, used to store, prepare, display or serve food intended for individual portion service.

14 NYCRR § 14-4.194 provides that a permit must be obtained before a mobile food service establishment can be operated.

AML § 20 authorizes A&M to inspect all places of business used in the manufacture, storage or sale of any article or product over which the AML gives A&M authority.

AML § 39 provides that violations of the AML are subject to a penalty, ifno specific penalty is otherwise provided, of up to $300 for the first violation and up to $600 for a second violation and each subsequent violation.

AML § 40 provides that the violation of a Commissioner's order or a departmental regulation by a person, association or corporation, or the agent, officer or employee thereof: is subject to a penalty of up to $200 for a first offense and a penalty of up to $400 for a second violation and each subsequent violation.

AML § 198(1) defines "food" and "food product" as including all articles of food, drink, confectionery or condiment whether simple, mixed or compound, used or intended for use by humans or animals, and including all substances or ingredients to be added to food for any purpose.

AML § 500(2) defines a "food service establishment as a place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided, whether consumption occurs on or off the premises, or whether or not there is a charge for the food.

AML § 500(2) defines a "retail food store" as an establishment or section of an establishment where food and food products are offered to the consumer and intended for off premises consumption, not including establishments which handle only pre-packaged, nonpotentially hazardous foods, roadside markets that offer only fresh fruits and fresh vegetables for sale, food service establishments, or food and beverage vending machines.

AML § 500(4) requires A&M to inspect each retail food store at least once in every 12 month period.

AML § 500(5) requires licensure of facilities operated as food service establishments or retail food stores, unless such facilities are otherwise under the jurisdiction of DOH or the United States Department of Agriculture.

21 u.s.e. §§ 343(q) and (r), which codify the NLEA, and the associated regulations of the FDA, require nutrition labeling on a "Nutrition Facts" label on certain packaged foods. In general, the Nutrition Facts panel is not required for food served by restaurants.

JUSTIFICATION :

Trans fatty acids, also known as trans fats, increase blood levels of low density lipoprotein (LDL), known as "bad" cholesterol, while decreasing levels of high density lipoprotein (HDL or "good" cholesterol), and are linked to coronary heart disease. While small amounts of naturally occurring trans fats occur in dairy and meat products, the great majority are artificially produced during "hydrogenation," when vegetable oils are processed and made more solid or into a more stable liquid. Artificial trans fats are most common in shortening, fry oils (used for foods such as French tries, doughnuts and other deep-fried foods) and commercially baked products (such as cookies, crackers, pastries, pies, etc.).

The consensus among the scientific community, including the Institute of Medicine of the National Academies, is that there is no known health benefit to the consumption of artificial trans fats and that there is no safe level of artificial trans fat consumption. Accordingly, this bill seeks to improve public health by prohibiting the storage, use, service or sale of foods containing artificial trans fats in food service establishments, mobile food establishments and retail food stores as those terms are defined by the SSC and the AML. In effect, the bill applies to restaurants, mobile vendors and other institutions such as schools, prisons and hospitals which are subject to inspection by DOH or city or county health departments, as well as supermarkets and convenience stores inspected by A&M.

A food will be deemed to contain artificial trans fats if it is or contains vegetable shortening, margarine or partially hydrogenated vegetable oil except that: (1) a shortening or margarine will not be deemed to contain artificial trans fat if documentation establishes that it does not contain partially hydrogenated vegetable oil; and (2) a food will not be deemed to contain artificial trans fat if the Nutrition Facts panel required by the NLEA or other acceptable documentation establishes that the food has less than 0.5 grams of artificial trans fat per serving. This permits the use of dairy and meat products that contain naturally occurring trans fats, newer shortenings and margarines that do not contain artificial trans fats, and other new products that contain very low amounts of partially hydrogenated vegetable oil. Moreover, this is consistent with the regulations of the United States Food and Drug Administration, which permit Nutrition Fact labels to list the trans fat content of a food as "0 grams" if it contains less than 0.5 grams per serving.

This bill's prohibition on artificial trans fats does not apply to: (1) food that is served or sold directly to patrons or customers in a manufacturer's original sealed package which bears the Nutrition Facts panel in the form required by the NLEA or the related FDA regulations; or (2) ingredients used or stored for the purpose of manufacturing such foods. Most of the items sold in grocery and convenience stores are contained in a manufacturer's original packaging with a Nutrition Facts panel and therefore will not be subject to the bill. Produce items are not implicated by the bill, which focuses on items containing or constituting vegetable shortening, margarine and partially hydrogenated oils. However, items "manufactured" by supermarket bakeries (such as breads, doughnuts or cakes) and supermarket delicatessens and meat or fish counters (such as sandwiches, fried fish and potato salad), as well as the shortenings, margarines and oils used to prepare these items, are covered by the bill if they are not packaged with a Nutrition Facts label. This ensures that unlabeled foods prepared for consumption at the point of purchase do not contain artificial trans fats, whether prepared at a restaurant or a retail store.

Compliance with the bill will be evaluated during the course of regular inspections authorized under the PHL, which are conducted by DOH or city and county health departments, or under the AML, which are conducted by A&M. Violations are punishable by the penalties set forth in the PHL, AML or the associated regulations.

The bill takes effect 200 days after the bill is enacted with respect to oils, shortenings and margarines containing artificial trans fat that are used for frying or in spreads, as it is relatively simple for establishments to locate other products that do not contain artificial trans fats for these purposes. Any other use of foods with artificial trans fats must be discontinued six months later, giving establishments and stores time to reformulate their recipes or find other suppliers for their products and ingredients.

LEGISLATIVE HISTORY :

New bill.

FISCAL IMPLICATIONS :

Because enforcement of the bill's provisions will occur as part of regular inspections already conducted by DOH, city and county health departments and A&M, the bill is not expected to have a fiscal impact on the State or localities.

EFFECTIVE DATE : This bill takes effect: (1) 200 days after enactment with respect to oils, shortenings and margarines containing artificial trans fat that are used for frying or in spreads, and (2) one year after enactment with respect to oils or shortenings used for deep frying of yeast dough or cake batter and with respect to all other foods containing artificial trans fat. The Commissioner of Health and the Commissioner of Agriculture and Markets may promulgate any necessary regulations, on an emergency basis if necessary, prior to that date.

Text

STATE OF NEW YORK ________________________________________________________________________ 6437 IN SENATE January 11, 2010 ___________
Introduced by Sen. DUANE -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law and the agriculture and markets law, in relation to prohibiting the sale or use of artificial trans fats in food service establishments, mobile food service establish- ments and retail food stores THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 1351 of the public health law is amended to read as follows: S 1351. Food places; duty to permit inspections. Every owner, opera- tor, lessor, lessee or person in charge of any hotel, restaurant, dining room, dining car, drug store, soda fountain, steamboat or other place engaged in the preparation, sale or service of food for and to the general public, and every officer or other person in charge of any public, penal or charitable institution in this state, shall permit the commissioner or his duly authorized agents or employees to have access to all parts of any and all of such places herein mentioned wherein food is stored, prepared or served for the purpose of ascertaining whether the provisions of sections thirteen hundred fifty to thirteen hundred fifty-two, inclusive, AND SECTION THIRTEEN HUNDRED FIFTY-SIX of this [chapter] TITLE, and the provisions of the sanitary code and provisions of local ordinances or regulations are being observed. S 2. The public health law is amended by adding a new section 1356 to read as follows: S 1356. FOOD CONTAINING ARTIFICIAL TRANS FAT. 1. (A) NO FOOD SERVICE ESTABLISHMENT OR MOBILE FOOD SERVICE ESTABLISHMENT, AS DEFINED BY THE STATE SANITARY CODE, SHALL STORE, DISTRIBUTE, HOLD FOR SERVICE, USE IN PREPARATION OF ANY MENU ITEM, SERVE OR SELL ANY FOOD, AS DEFINED BY THE STATE SANITARY CODE, CONTAINING ARTIFICIAL TRANS FAT. (B) PARAGRAPH (A) OF THIS SUBDIVISION SHALL NOT APPLY TO FOOD THAT IS: (I) SERVED OR SOLD DIRECTLY TO PATRONS OR CUSTOMERS IN A MANUFACTURER'S ORIGINAL SEALED PACKAGE THAT BEARS A NUTRITION FACTS LABEL IN THE FORM REQUIRED BY THE FEDERAL NUTRITION LABELING AND EDUCATION ACT OF 1990 AND
THE ASSOCIATED REGULATIONS OF THE FEDERAL FOOD AND DRUG ADMINISTRATION; OR (II) STORED, HELD OR USED FOR THE PURPOSE OF MANUFACTURING FOOD THAT IS SERVED OR SOLD DIRECTLY TO PATRONS OR CUSTOMERS IN A MANUFACTURER'S ORIGINAL SEALED PACKAGE THAT BEARS A NUTRITION FACTS LABEL IN THE FORM REQUIRED BY THE FEDERAL NUTRITION LABELING AND EDUCATION ACT OF 1990 AND THE ASSOCIATED REGULATIONS OF THE FEDERAL FOOD AND DRUG ADMINISTRATION. 2. (A) A FOOD SHALL BE DEEMED TO CONTAIN ARTIFICIAL TRANS FAT IF THE FOOD IS LABELED AS, LISTS AS AN INGREDIENT, OR CONTAINS: (I) VEGETABLE SHORTENING OR MARGARINE, UNLESS DOCUMENTATION ACCEPTABLE TO THE DEPART- MENT DEMONSTRATES THAT SUCH VEGETABLE SHORTENING OR MARGARINE CONTAINS NO PARTIALLY HYDROGENATED VEGETABLE OIL; OR (II) ANY KIND OF PARTIALLY HYDROGENATED VEGETABLE OIL. (B) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (A) OF THIS SUBDIVI- SION, A FOOD WHICH HAS, ACCORDING TO THE NUTRITION FACTS LABEL OR OTHER DOCUMENTATION ACCEPTABLE TO THE DEPARTMENT, A TRANS FAT CONTENT OF LESS THAN 0.5 GRAMS PER SERVING SHALL NOT BE DEEMED TO CONTAIN ARTIFICIAL TRANS FAT. 3. WITH RESPECT TO ANY FOOD STORED, DISTRIBUTED, HELD FOR SERVICE, USED IN PREPARATION OF ANY MENU ITEM, SERVED OR SOLD BY A FOOD SERVICE ESTABLISHMENT OR A MOBILE FOOD SERVICE ESTABLISHMENT THAT IS OR CONTAINS VEGETABLE SHORTENING, MARGARINE OR ANY KIND OF PARTIALLY HYDROGENATED VEGETABLE OIL, THE ESTABLISHMENT SHALL MAINTAIN, FOR AS LONG AS THE FOOD IS STORED, DISTRIBUTED, HELD FOR SERVICE, USED IN PREPARATION OF ANY MENU ITEM, SERVED OR SOLD AND IN A MANNER SPECIFIED BY THE DEPARTMENT, DOCUMENTATION ACCEPTABLE TO THE DEPARTMENT WHICH ESTABLISHES THE ARTIFI- CIAL TRANS FAT CONTENT OF THE FOOD. S 3. Section 500 of the agriculture and markets law is amended by adding a new subdivision 6 to read as follows: 6. (A) (I) NO FOOD SERVICE ESTABLISHMENT OR RETAIL FOOD STORE, AS DEFINED BY THIS SECTION, SHALL STORE, DISTRIBUTE, HOLD FOR SERVICE, USE IN PREPARATION OF ANY MENU ITEM, SERVE OR SELL ANY FOOD, AS DEFINED BY SECTION ONE HUNDRED NINETY-EIGHT OF THIS CHAPTER, CONTAINING ARTIFICIAL TRANS FAT. (II) SUBPARAGRAPH (I) OF THIS PARAGRAPH SHALL NOT APPLY TO FOOD THAT IS: (A) SERVED OR SOLD DIRECTLY TO PATRONS OR CUSTOMERS IN A MANUFAC- TURER'S ORIGINAL SEALED PACKAGE THAT BEARS A NUTRITION FACTS LABEL IN THE FORM REQUIRED BY THE FEDERAL NUTRITION LABELING AND EDUCATION ACT OF 1990 AND THE ASSOCIATED REGULATIONS OF THE FEDERAL FOOD AND DRUG ADMIN- ISTRATION; OR (B) STORED, HELD OR USED FOR THE PURPOSE OF MANUFACTURING FOOD THAT IS SERVED OR SOLD DIRECTLY TO PATRONS OR CUSTOMERS IN A MANUFACTURER'S ORIGINAL SEALED PACKAGE THAT BEARS A NUTRITION FACTS LABEL IN THE FORM REQUIRED BY THE FEDERAL NUTRITION LABELING AND EDUCA- TION ACT OF 1990 AND THE ASSOCIATED REGULATIONS OF THE FEDERAL FOOD AND DRUG ADMINISTRATION. (B) (I) A FOOD SHALL BE DEEMED TO CONTAIN ARTIFICIAL TRANS FAT IF THE FOOD IS LABELED AS, LISTS AS AN INGREDIENT, OR CONTAINS: (A) VEGETABLE SHORTENING OR MARGARINE, UNLESS DOCUMENTATION ACCEPTABLE TO THE DEPART- MENT DEMONSTRATES THAT SUCH VEGETABLE SHORTENING OR MARGARINE CONTAINS NO PARTIALLY HYDROGENATED VEGETABLE OIL; OR (B) ANY KIND OF PARTIALLY HYDROGENATED VEGETABLE OIL. (II) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (I) OF THIS PARA- GRAPH, A FOOD WHICH HAS, ACCORDING TO THE NUTRITION FACTS LABEL OR OTHER DOCUMENTATION ACCEPTABLE TO THE DEPARTMENT, A TRANS FAT CONTENT OF LESS THAN 0.5 GRAMS PER SERVING SHALL NOT BE DEEMED TO CONTAIN ARTIFICIAL TRANS FAT.
(C) WITH RESPECT TO ANY FOOD STORED, DISTRIBUTED, HELD FOR SERVICE, USED IN PREPARATION OF ANY MENU ITEM, SERVED OR SOLD BY A FOOD SERVICE ESTABLISHMENT OR A RETAIL FOOD STORE THAT IS OR CONTAINS VEGETABLE SHOR- TENING, MARGARINE OR ANY KIND OF PARTIALLY HYDROGENATED VEGETABLE OIL, THE ESTABLISHMENT OR STORE SHALL MAINTAIN, FOR AS LONG AS THE FOOD IS STORED, DISTRIBUTED, HELD FOR SERVICE, USED IN PREPARATION OF ANY MENU ITEM, SERVED OR SOLD AND IN A MANNER SPECIFIED BY THE DEPARTMENT, DOCUMENTATION ACCEPTABLE TO THE DEPARTMENT WHICH ESTABLISHES THE ARTIFI- CIAL TRANS FAT CONTENT OF THE FOOD. S 4. This act shall take effect on the two hundredth day after it shall have become a law with respect to oils, shortenings and margarines containing artificial trans fat that are used for frying or in spreads, and shall take effect one year after it shall have become a law with respect to oils or shortenings used for deep frying of yeast dough or cake batter and with respect to all other foods containing artificial trans fat. Effective immediately, the commissioner of health and the commissioner of agriculture and markets are authorized to adopt, amend or repeal, on an emergency basis if necessary, any regulation necessary to implement any provision of this act on its effective date.

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