THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY DALEY, CURRY AND MAHONEY, JUNE 3, 2009

REFERRED TO COMMITTEE ON COMMERCE, JUNE 3, 2009  

AN ACT

Providing for menu labeling in restaurants; and providing for

powers and duties of the Department of Health.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Menu Labeling

Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Calorie content information."  The total number of calories

per standard menu item as that item is usually prepared and

offered for sale.

"Drive-through."  An area where a customer may provide an

order for and receive standard menu items while occupying a

motor vehicle.

"Food facility."  A food service establishment in this

Commonwealth that sells any prepared food not subject to the

nutrition disclosure requirements of section 343(q) of the

Federal Food, Drug, and Cosmetic Act (52 Stat. 1040, 21 U.S.C. §

343(q)) and that has averaged at least $500,000 in prepared food

sales over the most recent three consecutive calendar years. The

term does not include a certified farmer's market, military

commissary, licensed health care facility, mobile support unit

or vending machine.

"Food tag."  A label or tag that identifies any food item

displayed for sale, such as in a display case.

"Menu."  A printed list or pictorial display of food or

beverage items and prices offered for sale that is distributed

to customers for the purpose of ordering. The term does not

include printed or pictorial materials for the purpose of

marketing.

"Menu board."  A posted list or pictorial display of food or

beverage items and prices at the point of sale offered for sale

by a food facility and used for the purpose of ordering. The

term does not include any printed or pictorial material for the

purpose of marketing.

"Nutritional information."  All of the following, per

standard menu item, as that item is usually prepared and offered

for sale:

(1)  Total number of calories.

(2)  Total number of grams of carbohydrates.

(3)  Total number of grams of saturated fat.

(4)  Total number of milligrams of sodium.

"Point of sale."  The location where a customer makes an

order.

"Reasonable basis."  Any reasonable means recognized by the

Food and Drug Administration of determining nutritional

information, as well as caloric content information, for a

standard menu item, as usually prepared and offered for sale,

including, but not limited to, nutrient databases and laboratory

analyses.

"Standard menu item."  A food or beverage item offered for

sale by a food facility through a menu, menu board or display

tag at least 180 days per calendar year. The term does not

include any of the following:

(1)  A food item customized on a case-by-case basis in

response to a customer request.

(2)  An alcoholic beverage, the labeling of which is not

regulated by the Food and Drug Administration.

(3)  A packaged food otherwise subject to the nutrition

labeling requirements of section 343(q) of the Federal Food,

Drug, and Cosmetic Act (52 Stat. 1040, 21 U.S.C. § 343(q)).

(4)  A food item served at a consumer self-service salad

bar or drink station.

(5)  A food or beverage item served at a consumer self-

service buffet or drink station.

(6)  A condiment.

(7)  An item placed on a counter or table for use without

charge to consumers.

Section 3.  Disclosure requirements.

(a)  Nutritional information.--

(1)  During the period beginning January 1, 2011, through

June 30, 2012, a food facility shall either disclose

nutritional information as required by paragraph (2) or

comply with subsection (b). When a food facility complies

with the requirement enumerated in subsection (b), the food

facility shall be exempt from this subsection.

(2)  (i)  In order to comply with paragraph (1), a food

facility that does not provide sit-down service shall

disclose the information in a clear and conspicuous

manner on a brochure that is made available at the point

of sale prior to or during the placement of an order.

(ii)  In order to comply with paragraph (1), a food

facility that provides sit-down service shall provide the

nutritional information in a clear and conspicuous size

and typeface on at least one of the following:

(A)  A brochure available on the table.

(B)  A menu next to each standard menu item.

(C)  A menu, under an index section that is

separate from the listing of standard menu items.

(D)  A menu insert.

(E)  A table tent on the table.

(3)  Notwithstanding subparagraph (i), a food facility

that has a drive-through area and uses a menu board to

display or list standard menu items at the point of sale

shall, for purposes of the drive-through area only, disclose

the nutritional information in a clear and conspicuous manner

on a brochure that is available upon request and shall

conspicuously display a notice at the point of sale that

reads: "NUTRITIONAL INFORMATION IS AVAILABLE UPON REQUEST" or

other similar statement that indicates the disclosure of

nutritional information is available upon request.

(b)  Calorie count information.--

(1)  On and after July 1, 2012, a food facility that

provides a menu shall disclose calorie content information

for a standard menu item next to or in close proximity to the

item on the menu in a size and typeface that is clear and

conspicuous.

(2)  On and after July 1, 2012, a food facility that uses

an indoor menu board shall disclose calorie content

information for a standard menu item next to or in close

proximity to the item on the menu board in a size and

typeface that is clear and conspicuous.

(3)  On and after July 1, 2012, a food facility that uses

a display tag as an alternative to a menu or menu board to

describe a standard menu item that is displayed for sale in a

display case within the food facility shall disclose calorie

content information for that standard menu item on the

display tag for that item in a size and typeface that is

clear and conspicuous.

(4)  (i)  On and after July 1, 2012, a food facility that

has a drive-through area and uses a menu board to display

or list standard menu items at the point of sale shall,

for purposes of the drive-through area only, disclose the

nutritional information for each standard menu item in a

clear and conspicuous manner on a brochure that is

available upon request and shall clearly and

conspicuously display a notice at the point of sale that

reads: "NUTRITIONAL INFORMATION IS AVAILABLE UPON

REQUEST" or other similar statement that indicates the

disclosure of nutritional information upon request.

(ii)  If a food facility subject to this paragraph

discloses nutritional information in the manner described

in subsection (a)(3), the food facility shall be deemed

to be in compliance with this paragraph.

(5)  For purposes of this subsection, disclosure of

calorie content information on a menu or menu board next to

or in close proximity to a standard menu item that is a

combination of at least two standard menu items on the menu

or menu board shall, based upon all possible combinations for

that standard menu item, include both the minimum amount of

calories for the calorie count information and the maximum

amount of calories for the calorie count information. If

there is only one possible total amount of calories, then

this total shall be disclosed.

(6)  For purposes of this subsection, the disclosure of

calorie content information on a menu or menu board next to

or in close proximity to a standard menu item that is

intended to serve more than one individual shall include both

of the following:

(i)  The number of individuals intended to be served

by the standard menu item.

(ii)  The calorie content information per individual

serving. If the standard menu item is a combination of at

least two standard menu items, this disclosure shall,

based upon all possible combinations for that standard

menu item, include both the minimum amount of calories

for the calorie count information and the maximum amount

of calories. If there is only one possible total amount

of calories, then this total shall be disclosed.

(iii)  For beverage items, a range of calorie count

information may be provided to include both the minimum

and maximum number of calories per serving.

(c)  Reasonable basis of determination.--

(1)  The nutritional information and calorie content

information required by this section shall be determined on a

reasonable basis.

(2)  A reasonable basis determination of nutritional

information and calorie content information shall be required

only once per standard menu item, provided that portion size

is reasonably consistent and the food facility follows a

standardized recipe and trains to a consistent method of

preparation.

(d)  Disclaimers.--Menus and menu boards may include a

disclaimer that indicates that there may be variations in

nutritional content across servings based on variations in

overall size and quantities of ingredients and based on special

ordering.

Section 4.  Construction.

This section shall not be construed to:

(1)  Establish or enhance any claim, right of action or

civil liability that did not previously exist under State law

or limit any claim, right of action or civil liability that

otherwise exists under State law.

(2)  Preclude a food facility from voluntarily providing

nutritional information in addition to the requirements of

this section.

Section 5.  No right of action.

No private right of action shall arise out of a violation of

this act.

Section 6.  Preemption.

To the extent consistent with Federal law, this section, as

well as any other State law that regulates the disclosure of

nutritional information, is a matter of Statewide concern and

occupies the whole field of regulation regarding the disclosure

of nutritional information by a food facility as well as content

required to be posted on menus, menu boards and food tags. No

ordinance or regulation of a local government shall regulate the

dissemination of nutritional information or the content required

to be placed on menus, menu boards or food tags by a food

facility. Any ordinance or regulation that violates this

prohibition is void and shall have no force or effect.

Section 7.  Penalty.

Commencing January 1, 2010, a food facility that violates

this act commits a summary offense, and shall, upon conviction,

be sentenced to a fine of not less than $50 or more than $500. A

food facility may not be found to violate this section more than

once during an inspection visit.

Section 8.  Regulations.

Within 180 days after the date of enactment, the Department

of Health shall promulgate regulations defining the specific

requirements that constitute substantial compliance with this

act by food facilities.

Section 9.  Effective date.

This act shall take effect in 60 days.