National Ass’n of Convenience Stores v. New York City Department of Health

Industry groups representing convenience stores, grocery stores, and restaurants sued in the Southern District of New York to prevent the City of New York from enforcing its regulations requiring sellers of prepared foods to post calorie information on their menus. The industry argues that because the FDA had recently announced a delayed “compliance date” of regulations issued to implement federal menu labelling requirements, New York’s enforcement of the substantively identical requirements was preempted.

Public Citizen filed a brief as amicus curiae in opposition to the industry groups’ motion for a preliminary injunction and in support of the City’s motion to dismiss. The brief argues that the federal law explicitly allows state and local governments to enforce requirements that “identical to” federal requirements, and that the City regulations are identical to the federal regulations promulgated in 2015. The brief explains that Congress intended for state and local governments to have a continued role in enforcing menu labeling laws.

On August 25, 2017, the industry groups and the City entered into a stipulation by which the City agreed to withhold certain enforcement measures and the industry groups would encourage members to comply.  The industry groups voluntarily dismissed their case in May 2018 when the FDA regulations went into effect.