§ 81.49 Sodium Warning.

   (a)   Definitions. When used in this section the following words and terms have the following meanings:

      (1)   Combination meal means a standard menu item that consists of more than one food item. A combination meal may be represented on the menu or menu board in narrative form, numerically, or pictorially. Some combination meals may include a variable menu item or be a variable menu item, as defined in this subdivision, where the components may vary and the customer selects which components will be included in the meal.

      (2)   Covered establishment means a food service establishment, as defined in 24 RCNY Health Code § 81.03 and permitted by the Department, that is part of a chain with 15 or more locations doing business under the same name and offering for sale substantially the same menu items.

      (3)   Food item with a high sodium content means any standard menu item offered by a covered establishment that contains per discrete serving unit more than or equal to 2,300 milligrams (mg) of sodium, or a combination meal offered by a covered establishment if any combination of food items available to the consumer contains more than or equal to 2,300 mg of sodium.

      (4)   Food on display means food that is visible to the customer before the customer makes a selection, so long as there is not an ordinary expectation of further preparation by the customer before consumption.

      (5)   Menu or menu board means a printed list of the names or images of a food item or items, and the primary writing of a covered establishment from which a customer makes an order selection. Menus include breakfast, lunch, and dinner menus; dessert menus; beverage menus; children's menus; other specialty menus; electronic menus; and menus on the internet, and may be in various forms, including booklets, pamphlets, single sheets of paper, or electronic screens. Determining whether a writing is or is part of the primary writing of a covered establishment depends on a number of factors, including whether the writing lists the name of a standard menu item (or an image depicting the standard menu item) and the price of the standard menu item, and whether the writing can be used by a customer to make an order selection at the time the customer is viewing the writing. Menu boards include menu boards inside the establishment as well as drive-through menu boards outside the establishment.

      (6)   Point of purchase means any place where a customer may order food within an establishment.

      (7)   Standard menu item means any individual food item or combination of food items listed or displayed on a menu or menu board that is sold by a covered establishment.

      (8)   Variable menu item means a standard menu item that comes in different flavors, varieties or combinations and is listed as a single menu item.

   (b)   Required warning. A covered establishment that offers for sale any food item with a high sodium content must provide the following warning:

      (1)   An icon must appear on a menu or menu board next to any food item with a high sodium content, or on a tag next to any food on display that is a food item with a high sodium content:

         The icon must be a black and white equilateral triangle as wide as it is tall and equal in height to the largest letter in the food item's name, as displayed on the menu, menu board, or tag next to any food on display; and

      (2)   The following statement must be posted conspicuously at the point of purchase:
"Warning:
indicates that the sodium (salt) content of this item is higher than the total daily recommended limit (2,300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke."

   (d)   Enforcement. The monetary penalty for a violation of this section is $200 dollars. Violations may be adjudicated at any tribunal operated by the Office of Administrative Trials and Hearings.

   (e)   Effective date. This section takes effect on December 1, 2015.

   (f)   Severability. If any provision of this section, or its application to any person or circumstance, is held invalid by any court of competent jurisdiction, the remaining provisions or the application of the section to other persons or circumstances shall not be affected.

(Added City Record 9/16/2015, eff. 10/16/2015)

§ 81.50 Posting of Calorie Information .

   (a)   Definitions. When used in this section the following words and terms have the following meanings:

      (1)   Combination meal means a standard menu item that consists of more than one food item. A combination meal may be represented on the menu or menu board in narrative form, numerically, or pictorially. Some combination meals may be a variable menu item where the components may vary and the customer selects which components will be included in the meal. Some combination meals may include a variable menu item as a part of the meal. A combination meal shall not mean a special price offer to a customer to combine standard menu items for which calorie information is already posted on the menu or menu board.

      (2)   Covered establishment means a food service establishment or similar retail food establishment that is part of a chain with 15 or more locations nationally doing business under the same name and offering for sale substantially the same menu items, or a food service establishment or similar establishment that is not part of such a chain that voluntarily registers with the United States Food and Drug Administration to be subject to the federal requirements for nutrition labeling of standard menu items pursuant to 21 C.F.R. § 101.11(d), or successor regulation.

      (3)   Custom order means a food order prepared in a specific manner in response to an individual customer's request, which requires the covered establishment to deviate from its usual preparation of a standard menu item.

      (4)   Daily special means a food item prepared and offered for sale on a particular day that is not routinely listed on a menu or menu board, or other offer and that is promoted by the covered establishment as a special item for that day.

      (5)   Food on display means restaurant-type food that is visible to the customer before the customer makes a selection, so long as there is not an expectation of further preparation by the customer before consumption.

      (6)   Food that is part of a customary market test means food that appears on a menu or menu board for less than 90 consecutive days to test customer acceptance of the food.

      (7)   Menu or menu board means a printed list of the names or images of a food item or items and the prices of such items, that is the primary writing of a covered establishment from which a customer makes an order selection. Menus include breakfast, lunch, and dinner menus; dessert menus; beverage menus; children's menus; other specialty menus; electronic menus; and menus on the internet, and may be in various forms, including booklets, pamphlets, single sheets of paper, or electronic screens. Determining whether a writing is or is part of the primary writing of a covered establishment depends on a number of factors, including whether the writing lists the name of a standard menu item (or an image depicting the standard menu item) and the price of the standard menu item, and whether the writing can be used by a customer to make an order selection at the time the customer is viewing the writing. Menu boards include menu boards inside the establishment as well as drive-through menu boards outside the establishment.

      (8)   Offering for sale substantially the same menu items means offering for sale a significant proportion of menu items that use the same general recipe and are prepared in substantially the same way with substantially the same food components.

      (9)   Similar retail food establishment means an establishment such as a convenience store, grocery or supermarket that serves restaurant-type food.

      (10)   Restaurant-type food means food that is (i) usually eaten on the premises of or while walking away from a food service establishment, or soon after arriving at another location, or (ii) processed and prepared primarily in a similar retail establishment and offered for sale to customers for either immediate or later consumption in or outside such establishment.

      (11)   Self-service food means restaurant-type food that is available at a salad bar, buffet line, cafeteria or similar self-service facility that is served by customers themselves and includes self-service beverages.

      (12)   Standard beverage fill means the fixed amount of a beverage that is less than the full volume of the cup holding the beverage per cup size.

      (13)   Standard ice fill means the fixed amount of ice in a cup of a beverage per cup size.

      (14)   Standard menu item means any individual food item or combination of food items listed or displayed on a menu or menu board that is sold by a covered establishment.

      (15)   Temporary menu item means a food item that appears on a menu or menu board for less than a total of 60 consecutive and non-consecutive days during a calendar year

      (16)   Variable menu item means a standard menu item that comes in different flavors, varieties or combinations and is listed as a single menu item.

   (b)   Scope and applicability. This section applies to standard menu items offered for sale in covered establishments and does not apply to condiments, daily specials, temporary menu items, custom orders, foods that are part of a customary market test or temporary menu items, or to any menu or menu board in a school that is for students in grades 12 or under.

   (c)   Posting calorie information. 

      (1)   Number of calories. Menus and menu boards must provide the number of calories contained in each standard menu item. Information must be posted for each item as it is usually prepared and offered for sale. For multiple-serving standard menu items, calorie information must be posted either (i) for the standard menu item as listed, or (ii) for a discrete serving unit provided that the total number of discrete serving units contained in such item is also posted.

      (2)   Position, size and color of calorie information. The number of calories must be listed adjacent to the name or price of the associated standard menu item in a type size that is no smaller than the smaller of either the name or price of the standard menu item. Calorie information must appear in a color that is the same or at least as conspicuous as that used to list the name of the associated standard menu item and against the same contrasting background, or a background at least as contrasting, as that against which the name of the associated standard menu item is listed.

      (3)   "Calories" or "Cal". The term "Calories" or "Cal" must appear either adjacent to the number of calories for each menu item or as a heading above a column listing the number of calories for each standard menu item. Such term appearing adjacent to calorie information for a standard menu item must meet the same font requirements as such calorie information. Such term appearing as a heading above a column must be listed in a type size that is no smaller than the smallest type size used to list the name or price of any menu item on that menu or menu board and in the same color, or as conspicuous a color, and against the same contrasting background, or a background at least as contrasting, as that used for that name or price.

      (4)   Basis for calorie information. Posted calorie values must have a reasonable basis, which may be derived from the use of nutrient databases, laboratory testing, or other reliable methods of analysis, and be rounded to the nearest ten (10) calories for calorie content values above 50 calories and to the nearest five (5) calories for calorie values 50 calories and below. Zero calories may be declared for any item containing fewer than five (5) calories.

      (5)   Self-service food and food on display. Calorie information must be declared for self-service food and food on display. The calorie information must be declared either (i) for each food item or, (ii) if the food item is not offered for sale in a discrete unit, per serving measured by a standard scoop or cup size. The declaration must identify the serving or discrete unit used to determine the calorie content. The calorie information must be posted either on a sign adjacent to and clearly associated with the corresponding food, or on a sign attached to a sneeze guard above the food item. The sign must identify the food item for which it is declaring calorie information if it is not otherwise clear to which food item the declaration belongs, or, if calorie information is being declared for more than one food item, on a sign or placard located where the customer can view both the food items listed on the sign and their calorie declarations. For self-service beverages, calorie declarations must be accompanied by the total number of fluid ounces in the cup indicated by the term "fluid ounces" and, if applicable, a description of cup size, e.g., small, medium, etc. as applicable.

      (6)   Different sizes, flavors and varieties; toppings; combinations. 

         (A)   Different sizes, flavors and varieties. For standard menu items offered in different flavors and varieties, calories must be posted for each listed size, flavor or variety. If all of the listed sizes, flavors or varieties of a standard menu item have the same calorie amount, menus and menu boards must list a single calorie declaration for the standard menu item. If there are only two calorie amounts for all sizes, flavors and varieties of a standard menu item, both calorie amounts must be posted on menus and menu boards for the menu item with a slash between the two calorie amounts. For sizes, flavors and varieties of a standard menu item having more than two calorie amounts, the range of calorie amounts must be posted on menus and menu boards for each such size, flavor and variety.

         (B)   Toppings. When toppings can be added to a standard menu item and such toppings are listed on menus and menu boards, the calories for the standard menu item must be listed as well as the calories for each such topping.

         (C)   Combinations. When a menu or menu board lists two options for standard menu items in a combination meal, the calories must be declared for each option with a slash between the calorie declarations. If three or more options for standard menu items in a combination meal are listed, the range of calorie content values showing the minimum to maximum numbers of calories for all combinations of that standard menu item shall be listed on menus and menu boards. If there is only one possible total calorie amount for the combination, then that total must be listed on menus and menu boards.

      (7)   Beverages that are not self-service. Calories declared for non-self-service beverages must be based on the full-volume of the cup or other container served without ice. If the establishment usually dispenses and offers for sale a standard beverage fill or a standard ice fill, the calories declared must be based on such standard beverage fill or standard ice fill.

   (d)   Required nutritional information statements. 

      (1)   General requirement. Menu boards and each page of a menu for a covered establishment must prominently state in a clear and conspicuous manner: "2,000 calories a day is used for general nutrition advice, but calorie needs vary."

      (2)   Children's menus. Instead of the requirement of subparagraph 1 of this paragraph, menus and menu boards, and pages of menus, targeted for children may state either: "1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8, but calorie needs vary."; or "1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8 years and 1,400 to 2,000 calories a day for children ages 9 to 13 years, but calorie needs vary."

   (e)   Additional written nutritional information. Covered establishments must have written nutritional information on the premises in the manner provided for in 21 C.F.R. § 101.11(b)(2)(ii), or successor regulation. The information must be made available to any customer who requests it. All menus and menu boards must prominently state in a clear and conspicuous manner: "Additional nutritional information available upon request."

   (f)   Enforcement. In addition to the Department, the Department of Consumer Affairs may enforce the requirements of this section.

   (g)   Severability. If any provision of this section, or its application to any person or circumstance, is held invalid by any court of competent jurisdiction, the remaining provisions or the application of the section to other persons or circumstances shall not be affected.

   (h)   Effective date. This section takes effect December 1, 2016.

(Amended City Record 9/16/2015, eff. 12/1/2016)

§ 81.51 Grading of Inspection Results and Posting of Grades by Certain Food Service Establishments .

   (a)   Grading. The Department shall establish and implement a system for grading and classifying inspection results for food service establishments using letters to identify and represent an establishment's degree of compliance with the provisions of this Code, the State Sanitary Code and other applicable laws that require such establishments to operate in a sanitary manner so as to protect public health. The letter "A" shall be the grade representing the highest degree of compliance with such laws. Subject to the provisions of this section, the Department shall provide each operating establishment that it inspects with a letter grade card indicating the establishment's inspection grade, except that no letter grade card shall be provided when the Department orders an establishment closed after an inspection.

   (b)   Posting. Upon receipt, and except as provided in subdivisions (c) and (e), an establishment shall conspicuously post a letter grade card so that it is visible to the general public and to patrons prior to entering the establishment. The letter grade card shall not be defaced, marred, camouflaged or hidden from public view.

   (c)   Issuance of grade card.

      (1)   "A" grades. For any establishment receiving an "A" grade, the Department shall provide the establishment with a letter grade card at the conclusion of the inspection where such grade is determined. The grade card shall be posted immediately.

      (2)   Other grades. For any food service establishment receiving a grade lower than an "A," the Department shall advise the establishment of its inspection grade and the findings upon which it was based. The Department shall conduct a subsequent inspection of the establishment no sooner than seven (7) days after the first inspection. At the conclusion of the second inspection, the Department shall provide the establishment with a letter grade card indicating the inspection grade that the establishment received on that inspection.

   (d)   Adjudications. After any notice of violation ("NOV") issued at an inspection at which a letter grade card was provided to a food service establishment is heard and determined by the Health Tribunal at the Office of Administrative Trials and Hearings ("OATH"), the Department shall re-grade the inspection results taking into account only the violations alleged in the NOV that were either admitted by the establishment or sustained by a hearing examiner. If re-grading changes the inspection grade, the Department shall issue the food service establishment a new letter grade card that the establishment shall immediately post instead of or in place of the letter grade card provided by the Department at the conclusion of the inspection resulting in the issuance of the NOV.

   (e)   When posting may be deferred.

      (1)   Any food service establishment receiving a grade lower than an "A" at a second inspection conducted pursuant to subdivision (c) of this section may defer posting the letter grade card provided by the Department at the conclusion of that inspection until the hearing date scheduled by the Department. If an establishment chooses to defer posting this letter grade card, the establishment shall remove any letter grade card that is currently posted, and instead post a sign provided by the Department advising the public that the establishment's inspection result is under review and that the results of the inspection can be obtained from the Department.

      (2)   If an establishment does not appear at the Health Tribunal at OATH on the date scheduled for hearing the NOV referred to in subdivision (d), the establishment shall immediately post the letter grade card issued by the Department at the second inspection conducted pursuant to subdivision (c). If the establishment appears at the Health Tribunal at OATH on the scheduled date, but the hearing is unable to proceed for any reason, or if the establishment makes a timely request for an adjournment and such adjournment is granted, the establishment may continue to defer posting the letter grade card until the adjourned hearing date. In no event shall an establishment defer posting its letter grade card after the adjourned hearing date if the establishment is not able to proceed on such date.

   (f)   Scope and applicability. This section shall not apply to mobile food vending units, mobile food vending commissaries, temporary food service establishments, food service establishments operated in or by primary and secondary schools, hospital-operated cafeterias, correctional facilities, or charitable organizations, including soup kitchens or other prepared food distribution programs, nor to food service establishments operated by not for profit membership organizations for service to their members only.

   (g)   No effect on other enforcement. Nothing in this section shall affect the Department's authority to take any other action necessary to protect the public health or to enforce the provisions of this Code or any other law or rule applicable to operation of a food service establishment.

§ 81.53 Maximum Beverage Size. [Repealed]

(Repealed City Record 7/9/2015, eff. 8/8/2015)  

§ 81.55 Modification by Commissioner.

When the strict application of any provision of this Article presents practical difficulties or unusual hardships, the Commissioner, in a specific instance, may modify the application of such provision consistent with the general purpose of this Article and upon such conditions as in his or her opinion are necessary to provide for clean and sanitary food prepared, manufactured, processed or served in clean and sanitary establishments. The denial of a request for modification by the Commissioner shall be deemed a final agency determination.