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(a) When, in the opinion of an inspector or authorized employee of the Department, any equipment, utensil or vehicle in a food service establishment or non-retail food processing establishment presents an imminent health hazard, is in an unclean condition, or in disrepair or damaged to such an extent so as to render it unsafe, such equipment, utensil, vehicle or any part thereof may be ordered sealed and its use immediately discontinued upon the approval of the director of the bureau of the Department enforcing this Article. Upon such sealing, the representative of the Department shall affix thereto labels or conspicuous signs bearing the word "unclean" or any other wording necessary to describe the sanitary condition or safety of the sealed equipment, utensil or vehicle, and he or she shall also prepare or cause to be prepared an order of the Commissioner or Department. The order and notice shall direct the discontinuance of the use or operation of the unclean article until it shall have been cleaned and made sanitary and safe, and the seals, labels or signs removed by a representative or with the authorization of the Department.
(b) When a food service establishment or non-retail food processing establishment is found upon inspection to be operating without a valid permit in violation of 24 RCNY Health Code § 81.05, the Department may order such establishment to close and cease all food operations immediately, and to remain closed until the establishment or operation has obtained and displays a valid permit.
(c) In addition to the forfeitures and penalties set forth in 24 RCNY Health Code Articles 3 and 5 of this Code, the Department may deny, suspend or revoke any permit or authorization issued pursuant to this Article when serious, repeated or persistent violations of any of the provisions of this Code have been found, or where interference with personnel of the Department in the performance of their duties or a violation of 24 RCNY Health Code § 5.17 occurs. Any person ordered to cease operation and service pursuant to this Article shall comply with such order immediately, and shall thereafter be provided with an opportunity to be heard pursuant to rule of the Department.
(d) The Department may deny or suspend a permit or authorization and order immediate cessation of operations and/or service of food at a food service establishment or non-retail food processing establishment if continued operation is an imminent hazard to public health. Any person ordered to cease operations and/or service of food pursuant to this subsection shall comply with such order immediately, and shall thereafter be provided with an opportunity to be heard pursuant to rule of the Department.
(e) Any order or notice issued pursuant to this section shall be served by personal delivery to the owner or person in charge of the food establishment, or by any method authorized by §§ 17-141 or 17-148 of the New York City Administrative Code, and an original thereof shall be filed with the Department.
(f) Seals, labels, signs, notices and orders affixed by the Department shall not be removed except by order of the Commissioner or his or her designated representative and not until the objectionable condition is removed or corrected.
(a) No person shall employ a food vending machine for the sale of packaged food or beverages in closed bottles or containers unless:
(1) the machine is designed and constructed to allow effective cleaning and maintenance and to remain free from insect and rodent harborages and other nuisances;
(2) the machine is designed and constructed so as not to become a hazard to children or others while in use or under foreseeable conditions of abuse;
(3) potentially hazardous foods shall be kept at or below 41 degrees Fahrenheit (5 degrees Celsius) or at or above 140 degrees Fahrenheit (60 degrees Celsius);
(4) the machine and the surrounding area are kept clean and sanitary.
(b) No person shall employ a food vending machine for the sale of unpackaged food or for the sale of beverages other than in closed bottles or containers unless the requirements of subsection (a) of this section are met and, in addition, the device is free from lead, cadmium or any other substance which may be so affected by the food or beverage as to form dangerous or deleterious compounds, or as to render food or beverage which comes into contact with such substance unwholesome or detrimental to health, or to impart odor, color or taste to the food. When the food vending machine is connected to a water supply system, it shall be designed and constructed to prevent contamination of the water supply system. Devices which dispense carbonated beverages shall be equipped with an air gap at the water inlet, or a protective device to vent any leaking carbon dioxide to the atmosphere, or any other protective device approved by the Department which will provide positive protection against the entrance of carbon dioxide or carbonated water into the water supply system. The water supply contact surfaces in devices which dispense carbonated beverages, from the protective device downstream including the protective device itself, shall not have any copper or copper-lined components in contact with the water supply or the beverage and its other components including any ice making and dispensing apparatus.
(c) There shall be provided in the immediate vicinity of all coin-operated or other mechanical dispensing devices, receptacles for the disposal of food or beverage containers.
(d) Potentially hazardous food shall be dispensed in individual, original containers or wrappers in which it was packaged at the food vending machine commissary or non-retail food processing establishment. Potentially hazardous food shall not be dispensed from bulk supplies.
(e) All food, other than fresh fruit, shall be stored or packaged in clean protective containers, or dispensed into clean single-use containers, and all food shall be prepared and vended in a sanitary manner and shall in all respects comply with the provisions of this Article.
(a) When a food service establishment or non-retail food processing establishment learns, has reason to suspect that a person has a food related illness, or is notified of any illness of a person diagnosed by a physician which allegedly resulted from food served at, or originating from, such establishment, the owner or person in charge shall immediately notify the Department. The Department may require the owner or the person in charge to submit, within 24 hours of the telephone report, a written report giving such additional information concerning the complaint as the Department may require. Under applicable provisions of the New York State Public Officers Law, reports may be subject to inspection by persons other than the Commissioner and authorized personnel of the Department but personal information about the patrons shall be redacted. Such reports shall not be used as a basis for prosecution by the Department.
(b) When a food service establishment or non-retail food processing establishment is subject to an occurrence which might result in contamination of food or food being held out of temperature limits, including but not limited to fire, power outage, or flood, the owner or person in charge shall immediately notify the Department.
(a) Beverage containers. Employees or consumers may refill consumers' personal take-out beverage containers (such as thermally insulated bottles, non-spill coffee cups, and promotional beverage containers) with beverages that are not potentially hazardous foods, provided that beverages are dispensed in a manner that prevents contact with, or contamination of, the food contact surfaces of the beverage dispensing equipment.
(b) Other containers. An establishment providing consumers with returnable containers must wash and sanitize all such containers before reuse in accordance with 24 RCNY Health Code § 81.29. An establishment that does not wash and sanitize patrons' containers before reuse must obtain Department approval of a written standard operating procedure that demonstrates that there is no contamination of food and/or food contact surfaces. Such procedure must be maintained on the premises and made available at the time of Department inspection.
(c) Container materials. Reusable containers that will be washed and sanitized must be made of food grade materials resistant under normal conditions of use to scratching, scoring, decomposition, crazing, chipping and distortion, and of sufficient weight and thickness to be washed and sanitized in accordance with 24 RCNY Health Code § 81.29.
(Added City Record 7/9/2015, eff. 8/8/2015)
(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."
"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)
(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)
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