New York City restaurateurs are spending much of this holiday season reassessing their menus. On December 5, 2006, New York became America’s first city to ban the use of trans fat in local eateries. According to NEW YORK CITY HEALTH CODE (24 RCNY) § 81.08, restaurants have until July 1, 2007 to eliminate all oils, margarines and shortenings that are used for frying or are in spreads which contain more than a half-gram of trans fat per serving. Restaurants will be given until July 1, 2008 to remove all menu items that contain ingredients which exceed the new trans fats limit. Id. Restaurant owners face penalties for violations of the trans fat ban ranging from civil fines ($200 - $2,000 per incidence) to license suspension or revocation to criminal misdemeanor charges for willful violations.

Trans fats, derived from partially hydrogenated oils, became popular in the 1950’s as an alternative to the saturated fats in butter. See Thomas J. Lueck, New York City Plans Limits on Restaurants’ Use of Trans Fats. N.Y. TIMES, September 27, 2006. Hydrogenated vegetable fats are used by food processors because they allow longer shelf-life and give food desirable taste, shape, and texture. Id. Although originally thought a safer alternative to butter, some research suggests dietary trans fats increase the risk of heart disease by elevating LDL (“bad”) cholesterol, and lowering HDL (“good”) cholesterol. Ascherio, A., et. al., Trans fatty acids and coronary heart disease. NEW ENGLAND J. MED. 1999; 340:1994-1998.

New York’s ban on trans fats is the latest volley in a recent nation-wide debate over food safety, which has prompted fierce opposition from the food industry and members of Congress who believe that the states are exceeding their authority on the matter. In January 2006, the FDA’s mandatory listing of trans fat content on the nutrition labels of packaged foods came into effect. See U.S. Food and Drug Administration. Trans Fatty Acids in Nutrition Labeling, Nutrient Content Claims, and Health Claims, 21 C.F.R. Part 21 (effective January 1, 2006). In addition, trans fat litigation involving McDonalds and Kraft in 2003 has provoked state governments to be more proactive in the food safety debate. Many food service organizations, such as the New York State Restaurant Association, have responded by threatening lawsuits on the grounds that the ban on trans fats will raise costs and change the taste of some menu items.

It is too early to know how New York City will enforce the trans fat ban, or if the ban will result in significant costs or losses to restaurant owners. For now, restaurateurs should communicate with their trade organizations and representatives about the validity of the new law, and keep detailed records concerning increased costs associated with the ban or losses attributable to changes in menu mix, pricing and/or food quality. They may also want to speak with an attorney about potential liabilities arising out of the use of saturated fats – the “bad” fats that trans-fats were meant to replace, which ironically may also support claims for food-related illnesses.

Harris Beach, PLLC represented one of the defendants in the McDonald’s obesity litigation. See Pelman v. McDonald’s Corp., 237 F.Supp.2d 512 (S.D.N.Y 2003). If you have any questions regarding this alert or other issues related to food safety and/or products liability, please contact Harris Beach attorneys Stanley Goos, Brian Bender or Kelly Jones at (212) 687 – 0100 or visit www.harrisbeach.com.