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An Ordinance amending and supplementing the Allegheny County Code of Ordinances, Division 8, entitled "Health Department Regulations," through the creation of a new Chapter 885, entitled "Nutritional Information Posting," in order to require the public availability of nutritional information for various restaurants operating within Allegheny County.
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WHEREAS, consumers must have basic nutritional information readily available in order to make informed choices about the food that they, their children, and dependants eat; and
WHEREAS, it is the desire of Council to provide consumers with specific nutritional information, such as calorie content, on menu items in order to enable consumers to make better nutritional choices consistent with their health needs; and
WHEREAS, ensuring informed food choices supports societal public health goals of preventing obesity, diabetes, and other avoidable nutrition-related diseases;
The Council of the County of Allegheny hereby enacts as follows:
SECTION 1. Legislative Findings. The Council finds that:
A. According to the United States Surgeon General, an estimated 300,000 deaths per year in the United States can be attributed to obesity, and an individual's risk of death increases as his or her weight does. Even moderate excess weight (10 to 20 pounds for an individual of average height) increases the risk of death, particularly among individuals aged 30 to 64, while obesity (a body mass index of over 30) increases the risk of death by 50 to 100 percent.
B. Also according to the Surgeon General, the incidence of heart disease (heart attack, congestive heart failure, sudden cardiac death, angina or chest pain, and abnormal heart rhythm) is increased in persons who are overweight or obese. High blood pressure is twice as common in adults who are obese than in those who are at a healthy weight, and obesity is associated with elevated triglycerides (blood fat) and decreased HDL cholesterol ("good cholesterol"). The Centers for Disease Control indicate that obesity contributes to two thirds of all heart disease in the United States.
C. The Surgeon General also indicates that a weight gain of 11 to 18 pounds increases a person's risk of developing type 2 diabetes to twice that of individuals who have not gained weight. Over 80% of people with diabetes are overweight or obese. Overweight and obesity are associated with an increased risk for some types of cancer including endometrial (cancer of the lining of the uterus), colon, gall bladder, prostate, kidney, and postmenopausal breast cancer. Women gaining more than 20 pounds from age 18 to midlife double their risk of postmenopausal breast cancer, compared to women whose weight remains stable. For every 2-pound increase in weight, the risk of developing arthritis is increased by 9 to 13%.
D. For children and adolescents, the Surgeon General reports that overweight adolescents have a 70% chance of becoming overweight or obese adults. This increases to 80% if one or more parent is overweight or obese.
E. According to the United States Department of Agriculture, Eating out has been increasingly popular for Americans over the past several decades. In 1970, 26 percent of all food spending was on food away from home; by 2005, that share rose to 41 percent.
F. The Department also notes that a number of factors contributed to the trend of increased dining out, including a larger share of women employed outside the home, more two-earner households, higher incomes, more affordable and convenient fast food outlets, increased advertising and promotion by large foodservice chains, and the smaller size of U.S. households. Continuation of these economic and demographic trends is expected to keep boosting Americans' growing appetite for eating out.
G. The Department's Economic Research Service (ERS) indicates that, between 1977-78 and 1994-96, U.S. consumption of food prepared away from home increased from 18 to 32 percent of total calories. Meals and snacks based on food prepared away from home contained more calories per eating occasion than those based on at-home food. Away-from-home food was also higher in nutrients (such as fat and saturated fat) that Americans overconsume and lower in nutrients (calcium, fiber, and iron) that Americans underconsume. Inroads are being made to improve the quality of American's diets, but the rising popularity of eating out presents a challenge for Americans.
H. According to the Journal of Nutrition Education and Behavior, food away from home plays an increasing role in Americans' diets, usually with negative effects on diet quality.
I. Published estimates suggest that, on any given day, one quarter of our adult population visits one of the nation's 300,000 fast food restaurants.
J. In addition, a recent collection of medical studies concludes that Americans are eating significantly bigger portions of french fries, chips, burgers, and soda than they did 20 years ago, in part due to larger portions eaten when dining out. This also results in more saturated fat (including trans fatty acids) and daily calorie consumption--approximately 200 calories more per day than 10 years ago.
K. According to Health Affairs Journal and RAND, 83 cents of every health care dollar in America is spent on a patient that is overweight or obese. According to the United States Department of Health and Human Services, the total cost of obesity in the U.S. is $117 billion each year, while statistics from the National Business Group on Health indicate that obesity is responsible for 39 million lost work days and 63 million physician visits in a typical year.
L. Observational studies have shown that people who frequently consume food away from home tend to weigh more than those who more frequently dine at home.
M. An FDA commissioned report concluded that, without access to nutritional information, consumers are not able to assess the caloric content of foods.
N. One study found that restaurant foods contain almost twice as many calories as consumers estimated, while another found that even trained nutrition professionals underestimate the calorie content of restaurant foods by 200-600 calories.
O. The public's awareness of restaurant foods is incomplete, especially compared to prepackaged foods.
P. Three quarters of American adults report using nutritional labels on packaged foods, and studies show that the use of food labels is associated with eating more healthful diets.
Q. Almost half of consumers report that the information provided on food labels has caused them to change their mind about buying a food product, and with nutrition information available, consumers are 24%-37% less likely to select high-calorie items.
R. The Federal Nutrition Labeling and Education Act requires food manufacturers to provide nutrition information on nearly all packaged foods, but explicitly exempts restaurants from that requirement. The Act does not expressly prohibit states and local governments from requiring restaurant menu information, while the Food and Drug Administration has indicated that state and local governments are free to require restaurant labeling (Food Labeling: Questions and Answers, Volume II, A Guide for Restaurants and Other Retail Establishments. Rockville, MD: Food and Drug Administration, 1995).
S. The current system of voluntary nutritional disclosures by restaurants is inadequate, as approximately two thirds of the largest chain restaurants fail to provide any nutritional information about their menu items to consumers, while those that do provide information often do not do so at the point of sale, but rather require consumers to visit websites or request brochures.
T. Competition within the food service industry is healthy and desirable, but cannot lead to healthier food options when consumers are not able to make choices based upon nutritional value of the food offered.
U. The United States Surgeon General, the Food and Drug Administration, the National Academies' Institute of Medicine, and the American Medical Association have all recommended nutritional labeling of restaurant food as a strategy to address rising obesity rates.
V. Allegheny County has a direct interest in reducing the clear danger to public health within the County posed by the widespread availability of food items for which the consumer can only guess at nutritional information that may literally be of life and death importance
SECTION 2.
The Allegheny County Code of Ordinances, Division 8, entitled "Health Department Regulations," is hereby amended by the addition of a new Chapter 885, entitled "Nutritional Information Posting," and comprised of the following new sections:
§885-1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
A. "Restaurant" Any business operated for profit within Allegheny County, regardless of form or organization, which prepares and sells food for consumption, whether on the premises or not.
B. "Food" Any substance in whatever form used or intended for use or for sale in whole or in any part for human consumption and includes, but is not limited to, snacks and deserts. For the purposes of this Chapter, the term shall not be deemed to include any beverage.
C. "Food Tag" Any written, printed or displayed price or description of food offered for sale at a restaurant that is not a menu or menu board.
D. "Menu” Any list of food offered for sale at a restaurant that is not a menu board.
E. "Menu Board" Any list of food offered for sale at a restaurant that is posted and intended for joint viewing by multiple customers simultaneously, including but not limited to back lit marquee signs above the point of sale at fast food outlets and chalk boards listing offered food items. For the purposes of this Chapter, the term shall also include any list of food offered for sale at a restaurant that is posted and intended for viewing by customers purchasing food to go, such as a drive through menu.
F. "Menu Item" Any item described on a menu, menu board or food tag that is prepared and offered for sale in a restaurant.
G. "Beverage" Any menu item prepared for the purpose of consumption primarily by drinking.
§885-2. Menu Labeling Required at Restaurants.
A. Required Nutritional Information. Each restaurant shall make nutritional information available to consumers for all menu items. This information shall include, but not be limited to, all of the following, for each menu item as that menu item is typically prepared and offered for sale:
1. Total number of calories;
2. Total number of grams of saturated fat;
3. Total number of grams of trans fat;
4. Total number of grams of carbohydrates; and
5. Total number of milligrams of sodium; and
6. Total number of grams of protein.
B. Information Posting; Menus. Each restaurant that uses a menu shall provide nutritional information required under subsection A. on the printed menu or as a printed addendum to the menu. All information shall be in a typeface that is no smaller than that used for the name or price of the menu item. The printed menu or addendum shall also include a notation in the same typeface indicating that the recommended limits for a 2,000 calorie daily diet are 20 grams of saturated fat and 2,300 milligrams of sodium.
C. Information Posting; Menu Boards and Food Tags. Each restaurant that uses a menu board or food tag shall delineate the number of calories present next to each item on the menu board or food tag in a typeface that is no smaller than that used for the name or price of the menu item. Each such restaurant shall also make the nutrition information required under the terms of Subsections A(1) through (6) available to consumers per menu item on printed menus, pamphlets, brochures, posters or similar documents that are plainly visible to consumers at the point of ordering. The printed information shall also include a notation in the same typeface indicating that the recommended limits for a 2,000 calorie daily diet are 20 grams of saturated ft and 2,300 milligrams of sodium.
D. Information Posting; Menu Items Served in Various Flavors or Varieties. If a restaurant offers a menu item in more than one flavor or variety and lists the item as a single menu item, the range of values for the nutritional information for all flavors and varieties of that item shall be listed for each size offered for sale.
E. Disclaimers. Menus, menu boards and food tags may include a disclaimer that indicates that there may be minimal variations in nutritional content from one serving to another, based on slight variations in overall size and quantities, or special ordering.
F. Verifiable and Reliable Information Required. The nutritional information required by this Section shall be based on a verifiable analysis of the menu items, which may include the use of nutrient databases, laboratory testing, or other reliable methods of analysis. A restaurant shall be deemed in violation of this Chapter if the provided nutritional information is:
1. Not present or not in the form required under the terms of this Section; or
2. Not true and accurate to the knowledge or belief of the restaurant; or
3. Deviates by more than 25% from values derived from analysis of any menu item by the Allegheny County Health Department.
G. Certain Food Items Excluded. This Section shall not apply to:
1. Items placed on a table or counter for general use without charge;
2. Items that are on a menu, menu board or food tag for less than a total of thirty (30) days in a calendar year.
§885-3. Enforcement and Penalties.
A. This Chapter shall be enforced by the Allegheny County Health. Citizen complaints regarding menu labeling shall be received on the Allegheny County Health Department's complaint system telephone line. The Department shall record and retain complaint information for the purpose of identifying repeat offenders and calculating fines or imposing other penalties under the terms of this Chapter.
B. For the first 180 days in which this Section is effective, all individuals and owners, individuals in control of, or business license holders for businesses or other establishments subject to the provisions of this Chapter shall receive a warning for their first violation of the terms of this Chapter and a $250 fine for subsequent violations. After the first 180 days in which this Chapter is effective, all individuals and owners, individuals in control of, or business license holders for businesses or other establishments subject to the provisions of this Chapter shall be fined the sum of $250 for each violation of the terms of this Chapter.
C. Upon a third violation by a business or other establishment, the Health Department may also suspend any licenses or other permits that the business or other establishment has been granted by the Department for a period not to exceed one hundred and eighty (180) days, pending a review of the procedures implemented by the business, the creation of a corrective action plan by the business, and approval of the corrective action plan by the Department.
D. For the purposes of this Section, each day upon which a menu, menu board, or food tag lacks required information as required under the terms of §885-2.F shall constitute a single violation.
E. Nothing in this Chapter shall be construed to create any private right of action for enforcement of its provisions or to authorize any person to file suit to recover damages or seek equitable relief for any violation of the terms of this Chapter.
§885-4. Nonretaliation; No Waiver of Employee Rights.
A. No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant or customer exercises any rights afforded by this Chapter or reports or attempts to otherwise prosecute a violation of this Chapter.
B. No person, employer or other entity shall in any manner retaliate against any individual who performs work on a voluntary basis because that individual exercises a right afforded by this Chapter or reports or attempts to otherwise prosecute a violation of this Chapter.
C. Any violation of the provisions of subsection A or B of this section shall be punished as a violation of this chapter under the terms of §885-3.
D. Nothing contained within this section shall be construed to reduce, enlarge, or in any other fashion alter the limitation contained within §885-3.E.
SECTION 3. Effective Date.
This Ordinance shall take effect ninety (90) days after passage.
SECTION 4 . If any provision of this Ordinance shall be determined to be unlawful, invalid, void or unenforceable, then that provision shall be considered severable from the remaining provisions of this Ordinance which shall be in full force and effect.