978-1285770178 Case Printout Case CPC-24-05 Part 2

ing its own requirements for nutrition information

labeling, see 21 U.S.C. § 343-1(a)(4), but it does

generally preempt it from adopting different rules for

boards are “claims” falling under Section 343(r) and

are thus preempted, or are “nutrition information”

information listed in Section 343(q), would not be

preempted by the NLEA.

FN7. NYSRA argues that the doctrine of

tion, we do not reach this question.

*126 Information that is required or permitted ... to

be declared in nutrition labeling, and that appears

as part of the nutrition label, is not a nutrient con-

tent claim and is not subject to the requirements of

this section. If such information is declared else–

where on the label or in labeling, it is a nutrient

content claim and is subject to the requirements for

“simple factual information” from the definition of

“nutrient content claim” on the theory that such a

The agency advises that while it can agree

(October 24, 1990)). Moreover, the state–

ment in section 403(r)(1) of the act re-

ferred to by the comment as excluding

from coverage statements of the type con–

tained in nutrition labeling, in fact ex–

cludes “a statement of the type required

by paragraph (q) that appears as part of

the nutrition information required or per–

mitted by such paragraph * * *.” FDA

stated in the general principles proposal

(56 FR 60421 at 60424), that the legisla-

403(r)(2)(A)(i) through (r)(2)(A)(v), “a

statement in the label or labeling of food

claims. Furthermore, section

of a nutrient in food.

58 Fed.Reg. 2302-01, 2303-04 (1993)

information under Section 343(q); otherwise the “nu-

trition information” becomes a “claim,” subject to

Section 343(r), and preempted by Section 343-

1(a)(5). Thus, NYSRA goes one step further than the

pressed the view that the NLEA recognizes

the authority of states to require restaurants

to disclose nutrition content to their custom-

www. cfsan. fda. gov/~ dms/ nutrcal. html

(last visited Jan. 13, 2009) [hereinafter Key–

stone Report ] (“[T]he FDA does not have

regulatory authority to require nutrition in-

formation in restaurants. The U.S. Congress

and state legislatures do have the authority

Thus, since the regulations noted in Regulation

101.13-101.9 and 101.36-do not apply to nutrition

information mandated by state or local law to be

placed on restaurant food, the “third prong’s” refer-

ence to “such information” does not speak to “infor-

mation” relating to restaurant food.FN14 Finally, the

“second prong” which references information that

appears “as part of the nutrition label,” confirms this

reading. The FDCA defines “label” as any “display

of written, printed, or graphic matter upon the imme–

diate container of any article,” 21 U.S.C. § 321(k)

“The following foods are exempt from this

sion simply recognizes that food served in

ant to Section 343(q)(2)(A), in addition to

Our above analysis perhaps simply comes down to

this: accepting NYSRA’s position-that states or mu-

nicipalities choosing to regulate nutrition information

labeling by restaurants may do so only by adopting

labeling requirements that are identical to those listed

in Section 343(q) and Regulation 101.9-would render

Section 343-1(a)(4)‘s exception for preemption mean-

ingless.FN15 See FDA v. Brown & Williamson Tobac–

co Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146

tions,” Hillsborough County, 471 U.S. at 718, 105

S.Ct. 2371. Therefore, if there is any ambiguity in the

permit localities to mandate restaurants to disclose

100.1(d) (listing requirements to obtain

the requisite waiver, and Section 343-1(b)

addresses regulations that are actually