Ulster County, NY
 
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Table of Contents
Table of Contents
[HISTORY: Adopted by the County Legislature of the County of Ulster as indicated in article histories. Amendments noted where applicable.]
[Adopted 4-7-2009 by L.L. No. 1-2009]

§ 205-1 Title.

This article shall be known as the "Ulster County Menu Labeling Act of 2009."

§ 205-2 Calorie information for menu items.

Chain food service establishments shall post on menu boards, menus, and food display tags the calorie content values (in kcal) for each menu item next to the listing of each menu item.
A. 
Menu boards and menus. The term "calories" or "cal" shall appear as a heading above a column listing the calorie content value of each menu item or directly adjacent to the calorie content value for each menu item.
(1) 
Menu boards. On menu boards, calorie content values shall be legible, posted clearly and conspicuously, and displayed in a color as or more prominent than the color in which the name of the menu item or price of the menu item is displayed. Calorie content values shall also be posted in a size and typeface at least as large as the name of the menu item or price, whichever is larger.
(2) 
Menus. On printed menus, calorie content values shall be legible, printed conspicuously, and displayed in a color as or more prominent than the color in which the name of the menu item or price of the menu item is displayed. Calorie content values shall also be printed in a size and typeface at least as large as the name or price of the menu item.
(3) 
Food display tags. If a restaurant or similar retail food establishment provides a salad bar, buffet line, cafeteria service, food display case, or arrangement where food is on display, it must provide calories per standard item next to where the item is offered in a size and typeface that are prominent and legible from where customers are choosing those items.
B. 
For menu items that come in different flavors and varieties but that are listed as a single menu item, such as, but not limited to, soft drinks, ice cream, pizza, and doughnuts, the median value for calories for all flavors or varieties shall be listed on menus and menu boards if the calorie values for all flavors or varieties are within 20% of the median. If the calorie values are not within 20% of the median, then the range for all the flavors or varieties of that menu item shall be listed from the lowest to the highest value. If a menu item that comes in different varieties is on display with a name placard or similar signage, the calories per serving as offered for sale shall be listed on the placard along with the name. If a menu item is not on display, nutrition information for each individual flavor or variety shall be provided in writing at the point of ordering.
C. 
Chain food service establishment owners or operators shall provide to the Department, if requested, information documenting the accuracy of the calorie labeling required by this section.
D. 
The Ulster County Board of Health may promulgate rules and regulations as may be necessary to outline parameters and procedures and as may otherwise be necessary to effectuate the purposes of this article.

§ 205-3 Legislative findings.

A. 
The Healthy Eating and Living (HEAL Ulster County) Initiative was created in 2007 to quantify the severity of childhood obesity in Ulster County schools and develop initiatives that combat this public health crisis on a local level. In February 2007, a body mass index screening study was commissioned to help determine the scope of childhood obesity in Ulster County. HEAL Ulster initiated a survey of all school districts in Ulster County to understand the level and type of data collection and if they would be willing to participate in a body mass index (BMI) screening for grades one to three.
B. 
The participating school nurse, the school's health practitioner or the child's personal physician recorded data from the 2006-2007 school year. Data was used from 2,105 students, 1,027 first graders and 1,078 second graders. Of the 2,105 children, 2% were underweight, 61.85% were of a healthy weight, 16.58% were at risk of becoming overweight, and 19.57% were overweight with 4.75% being extremely overweight. In total, 36.15% of the children (18.48% males and 17.67% females), or one in three, are overweight or at risk of becoming overweight.
C. 
One of the goals for Healthy People 2010 is to "promote health and reduce chronic disease associated with diet and weight" by reducing the proportion of children age six to 11 who are overweight or obese to 5% (United States Department of Health and Human Services). [Healthy Eating and Living (HEAL) body mass index screening study: http://www.ulstercountyny.gov/health/UCHDBMIStudyfinal.pdf.]
D. 
According to the United States Centers for Disease Control, since the mid seventies, the prevalence of overweight and obesity has increased sharply for both adults and children. Data from two national health and nutrition examination surveys shows that among adults aged 20 years, the prevalence of obesity increased from 15.0% (in the 1976 survey) to 32.9% (in the 2003 survey). The two surveys also show increases in overweight among children and teens. For children aged two years, the prevalence of overweight increased from 5.0% to 13.9%; for those aged six years, the prevalence increased from 6.5% to 18.8%; and for those aged 12 years, the prevalence increased from 5.0% to 17.4%. These increasing rates raise concern because of their implications for Americans health. Being overweight or obese increases the risk of many diseases and health conditions, including the following: hypertension, dyslipidemia (for example, high total cholesterol or high levels of triglycerides), type 2 diabetes, coronary heart disease, stroke, gallbladder disease, osteoarthritis, sleep apnea and respiratory problems, and some cancers (endometrial, breast and colon). A prime cause of overweight and obesity is eating too many calories and not getting enough physical activity.
[Amended 8-17-2010 by L.L. No. 3-2010]]
E. 
A key recommendation of a recent Food and Drug Administration sponsored expert group report on obesity and eating away from the home was that "Away-from-home food establishments should provide consumers with calorie information in a standard format that is easily accessible and easy to use. Participants believe that information should be provided in a manner that is easy for consumers to see and use as part of their purchasing and eating decisions. Information should be provided for any standard menu item offered on a regular and ongoing basis that is prepared from a standardized recipe, whether the item is an entire meal or a meal component."
F. 
This article will require chain food service establishments in Ulster County to list the calorie content values of menu items on menus and menu boards. Such information, clearly displayed at the point of decision, will allow consumers in Ulster County to exercise personal responsibility and make informed choices for a growing part of their diets.

§ 205-4 Definitions.

For purposes of this article, the meaning of terms used in this article shall be as follows:
CHAIN FOOD SERVICE ESTABLISHMENT
A food service establishment which is permitted for operation by the Ulster County Department of Health and that is one of a group of 15 or more food service establishment locations in the United States, whether in Ulster County or elsewhere, offering for sale substantially the same menu items, in servings that are standardized for portion size and content, that operate under common ownership or control or as franchised outlets of a parent business or do business under the same name.
DEPARTMENT
The Ulster County Department of Health.
FOOD DISPLAY TAG
A written or printed description of a food or beverage placed in the vicinity of the item, such as a label or placard identifying a type or the price of ice cream, pastry or doughnut.
MENU
A printed list or pictorial display of food items, and their price(s), that are available for sale from a chain food service establishment and shall include menus distributed or provided outside of the establishment.
MENU BOARD
Any list or pictorial display of food items and their price(s) posted in and visible within a chain food service establishment or outside of a chain food service establishment for the purpose of ordering, such as from a drive-through window.
MENU ITEM
Any individual food item, or combination of food items, listed or displayed on a menu board, menu or food display tag that is sold by a chain food service establishment.

§ 205-5 Enforcement; penalties for offenses.

A. 
For the purpose of this article, the term "enforcement officer" shall mean the Ulster County Board of Health or its designee. The enforcement officer may cause to have issued and served upon the person complained against a written notice, together with a copy of the complaint made against him, which shall specify the provisions of this article of which such person is said to be in violation and a statement of the manner in which that person is said to violate it and shall require the person so complained against to answer the charges of such complaint at a public hearing before the Board of Health or its designated hearing officer at a time not less than 15 days after the date of service of notice. The Board of Health may serve, together with a copy of complaint, a stipulation offer to the person complained against to enter into a stipulation under the terms and conditions as set forth in the stipulation offer. The person complained against shall have the option of entering into the stipulation or proceeding with a formal hearing.
B. 
If the enforcement officer determines after a hearing that a violation of this article has occurred, a civil penalty may be imposed by the enforcement officer pursuant to Subsection F of this section. Nothing herein shall be construed to prohibit an enforcement officer from commencing a proceeding for injunctive relief to compel compliance with this article.
C. 
Any person who desires to register a complaint under this article may do so with any appropriate enforcement officer.
D. 
The decision of any hearing officer shall be reviewable pursuant to Article 78 of the Civil Practice Law and Rules.
E. 
The enforcement officer, subsequent to any appeal having been finally determined, may bring an action to recover the civil penalty provided in Subsection F of this section.
F. 
Any person who violates any provision of this article shall be guilty of a violation punishable by a civil penalty not to exceed $200 a day.

§ 205-6 When effective.

This article shall take effect 180 days after its adoption by the Ulster County Legislature.
[Adopted 3-17-2015 by L.L. No. 4-2015]

§ 205-7 Title.

This article shall be known as "Food Service Waste Reduction Act."

§ 205-8 Legislative intent and findings.

A. 
The Legislature finds and determines that polystyrene foam is a common environmental pollutant and nonbiodegradable substance commonly used as food service ware and that there is no meaningful recycling or reuse of polystyrene foam food service ware.
B. 
The Legislature further finds and determines that the Environmental Protection Agency has found that the polystyrene manufacturing process is the fifth largest creator of hazardous waste in the United States.
C. 
The Legislature further finds and determines that evidence suggests that a component of polystyrene foam, styrene, is a carcinogen and neurotoxin. According to EPA studies, styrene is now detectable in the fat tissue of every man, woman and child in the United States.
D. 
The Legislature further finds and determines that alternative cost-effective biodegradable, compostable and/or reusable food service ware is readily available. Such alternatives are less toxic and more environmentally friendly than polystyrene foam.
E. 
The Legislature further finds and determines that the use of biodegradable, compostable food, and/or reuseable service ware will reduce the waste stream and reduce waste costs. Therefore, the purpose of this article is to eliminate the use of polystyrene foam food service ware by food service establishments within Ulster County.
F. 
Therefore, the Legislature hereby finds and determines that the prohibition of the use of polystyrene foam disposable food service ware in Ulster County is in the best interests of the citizens of Ulster County.

§ 205-9 Definitions.

As used in this article, the following terms shall have the meanings indicated:
CHAIN FOOD SERVICE ESTABLISHMENT
A food service establishment or food service establishments operating in Ulster County that is or are part of a group of 15 or more food service establishment locations nationally, doing business under the same trade name, offering predominantly the same types of meals, foods or menus regardless of the type of ownership of the individual food service establishment locations.
COUNTY
The County of Ulster.
CUSTOMER(S)
Any person(s) obtaining prepared food from any food service establishment.
DISPOSABLE FOOD SERVICE WARE
All bowls, plates, cartons, cups, other containers, trays, or other items designed for one time use on or in which any food service establishment directly places and/or packages food or provides same to customer(s) to place and/or package food or which are used by customer(s) to consume or transport food. This includes, but is not limited to, service ware for takeout prepared food and/or leftovers from partially consumed meals prepared at or by chain food service establishments for consumption at a specific location. This does not include single-use disposable items such as straws, cup lids, or utensils.
FOOD SERVICE ESTABLISHMENT
Any establishment, located or providing food within the County of Ulster, which sells or otherwise provides prepared food and/or beverages for public consumption on or off its premises and includes, but is not limited to, any store, shop, sales outlet, restaurant, bar, pub, coffee shop, cafeteria, caterer, convenience store, liquor store, grocery store, supermarket, delicatessen, catering truck, mobile food truck, cart or vehicle, or any other person who provides prepared food; and any organization, group or individual which regularly provides food as a part of its services.
HEALTH COMMISSIONER
The Commissioner of Health for Ulster County.
POLYSTYRENE FOAM
Any blown polystyrene, expanded, and extruded foams (commonly referred to as "Styrofoam," a Dow Chemical Company trademarked form of polystyrene foam insulation) which are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion blow molding (extruded from polystyrene). Polystyrene foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays and egg cartons.
PREPARED FOOD
Any food or beverage which is 1) served in Ulster County or 2) packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared on the premises. Prepared food does not include raw meats, poultry and/or seafood sold for the purpose of cooking off premises.

§ 205-10 Use of disposable polystyrene foam food service ware prohibited.

A. 
No chain food service establishment shall sell or otherwise provide prepared food in any disposable food service ware that contains polystyrene foam.
B. 
No food service establishment shall sell or otherwise provide prepared food in any disposable food service ware that contains polystyrene foam.
C. 
No County facilities, County-managed concessions, County-sponsored events or County-permitted events shall distribute or utilize disposable food service containers containing expanded polystyrene or nonrecyclable plastic.

§ 205-11 Exemptions.

A chain food service establishment or food service establishment may seek an exemption from the prohibition under § 205-10 due to a "unique packaging hardship" under Subsection A of this section or a "financial hardship" under Subsection B of this section.
A. 
The chain food service establishment or food service establishment must demonstrate that no reasonably feasible alternative exists to a specific and necessary polystyrene foam disposable food service ware to qualify for a "unique packaging hardship" exemption.
B. 
The chain food service establishment or food service establishment must demonstrate both of the following to qualify for a "financial hardship" exemption:
(1) 
A gross income under $300,000 on their annual income tax filing for the most recent tax year; and
(2) 
With respect to each specific and necessary polystyrene foam disposable food service ware, that there is no feasible alternative that would cost the same or less than the polystyrene foam disposable food service ware.
C. 
The chain food service establishment or food service establishment may submit a written application for an exemption on a form provided by the Department of Health. The Commission of Health or designee ("Commissioner") may require the applicant to submit additional information or documentation to make a determination regarding the exemption request. Within 30 days of receiving a completed application and supporting documentation, if any, the Commissioner must either grant or deny the applicant's request for an exemption and must notify the applicant of his or her determination. A request for exemption shall be reviewed on a case-by-case basis, and may be granted in whole or in part, with or without conditions, for a period of up to 12 months. The chain food service establishment or food service establishment must apply for a new exemption period no later than 60 days prior to the expiration of the then current exemption period to preserve a continuous exemption status. Each application shall be reviewed anew and will be based on the most current information available. The determination of the Commissioner shall be final and is not subject to appeal.

§ 205-12 Enforcement; notice of violation.

A. 
The Commissioner of Health or designee shall have responsibility for notification and enforcement of this article. The Commissioner of Health or designee is authorized to promulgate rules and regulations and take any and all other reasonable actions necessary to implement and enforce this article. Any rules and regulations so promulgated shall be made available on the County of Ulster website in a manner approved by the Commissioner of Health.
B. 
Anyone violating or failing to comply with any of the requirements of this article or of any regulation or administrative procedure authorized by it shall be guilty of an infraction.
C. 
The County Attorney may seek legal, injunctive, or any other relief to enforce this article and any regulation or administrative procedure authorized by it.
D. 
The remedies and penalties provided in this article are cumulative and not exclusive of one another.

§ 205-13 Penalties for offenses.

Violations of this article shall be enforced as follows:
A. 
For the first violation, the Commissioner of Health, or designee, upon determination that a violation of this article has occurred, shall issue a written warning notice to the chain food service establishment or food service establishment which will specify the violation and the appropriate penalties in the event of future violations.
B. 
Thereafter, the following penalties shall apply:
(1) 
First offense. Any chain food service establishment or food service establishment guilty of a first offense shall be guilty of a violation and shall be fined an amount not to exceed $250.
(2) 
Second offense. Any chain food service establishment or food service establishment guilty of a second offense shall be guilty of a violation and shall be fined an amount not to exceed $500.
(3) 
Third and subsequent offenses. Any chain food service establishment or food service establishment guilty of a third or subsequent offense shall be guilty of a violation and shall be fined an amount not to exceed $1,000.
(4) 
Fines are cumulative and each day that a violation occurs shall constitute a separate violation.
C. 
For the purpose of this section, each physical location or establishment shall be treated individually, and offenses and fines for separate locations shall be considered individually.

§ 205-14 Reverse preemption.

This article shall be null and void on the day that federal or statewide legislation goes into effect, incorporating either the same or substantially similar provisions as are contained in this law, or in the event that a pertinent state or federal administrative agency issues and promulgates regulations preempting such action by the County of Ulster. The County Legislature may determine via mere resolution whether or not identical or substantially similar federal or statewide legislation, or pertinent preempting state or federal regulations have been enacted for the purposes of triggering the provisions of this section.

§ 205-15 Effective date; and applicability.

This article shall be effective six months subsequent to filing in the Office of the Secretary of State for Chain Food Service Establishments, County facilities, County-managed concessions, County-sponsored events and County-permitted events, and one year subsequent to filing in the Office of the Secretary of State for Food Service Establishments. This article shall apply to all transactions occurring on or after the effective dates referenced above.