ORDINANCE NO._______________

BOARD OF SUPERVISORS, COUNTY OF SAN MATEO,

STATE OF CALIFORNIA

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AN ORDINANCE ADDING CHAPTER 4.58 TO TITLE 4 OF THE SAN MATEO COUNTY ORDINANCE CODE REQUIRING CHAIN FOODSERVICE ESTABLISHMENTS TO POST NUTRITION INFORMATION

The Board of Supervisors of the County of San Mateo, State of California, ORDAINS as follows:

SECTION 1. Chapter 4.58, comprising of sections 4.58.010 through 4.58.050, is hereby added to Title 4 of the San Mateo County Ordinance Code to read as follows:

CHAPTER 4.58 REQUIRING CHAIN FOODSERVICE ESTABLISHMENTS TO POST NUTRITION INFORMATION

4.58.010 Findings and purpose.

The Board of Supervisors finds and determines as follows:

(a)

Purpose. This Chapter requires chain foodservice establishments to provide consumers with specific nutritional information such as calorie content on menu items so that consumers may be better able to make nutritional choices consistent with their health needs. Consumers must have basic nutritional information readily available in order to make informed choices about the food that they, and their children and dependants, eat. Ensuring informed food choices supports public health goals of preventing obesity, diabetes, and other preventable nutrition-related diseases.

(b)

Findings. Chronic diseases and obesity are concurrent, serious and growing public health crises affecting states and localities across the country. In California and the County of San Mateo, these two epidemics are among the greatest public health challenges, as evidenced by the following: chronic diseases, including cardiovascular disease, diabetes, and hypertension are a leading cause of death attributing to seventy percent of all deaths in the United States and obesity rates have tripled in children and in teenagers over the past twenty years. In California, one third of children, one fourth of teenagers, and one half of adults are either overweight or obese; fifty percent of overweight children and teenagers remain overweight as adults; and obesity places Californians at greater risk for heart disease, type-2 diabetes, high blood pressure, stroke, arthritis-related disabilities, depression, sleep disorders, and certain cancers. The San Mateo County Health Officer has recently reported that there is increasing evidence of obesity and other related health concerns in San Mateo County.

The burden of an increasingly overweight and obese population and the accompanying chronic diseases manifests itself in premature death and disability, increased health care costs, and lost productivity. Further, the rise in obesity rates has coincided with an increase in the number of meals Americans eat outside the home. And consumers consistently underestimate the nutritional content of meals purchased at restaurants. When provided with nutritional information, consumers are better able to make healthier choices regarding their diet.

(c)

Pursuant to Health and Safety Code section 101025, this Board may adopt ordinances to preserve and protect public health. Pursuant to Health and Safety Code section 113715, part of the California Retail Food Code, operation of a food facility shall be in accordance with state law as well as local ordinances. This Board does, accordingly, find and declare that in order to combat the serious public health crisis resulting from obesity and the attendant financial costs and other impacts, it is necessary that consumers have access to basic nutrient and calorie information regarding the food they eat. The ability of patrons to immediately and easily view the number of calories contained in a menu item and the other nutritional information covered by this Chapter will assist consumers in making decisions and may encourage them to make healthy choices.

4.58.020 Definitions.

For purposes of this Chapter, the following terms have the following meanings:

(a)

“Chain foodservice establishment” means a foodservice establishment within the unincorporated area of the County that shares the same name with at least 14 other foodservice establishments and/or franchised outlets in California, offers substantially the same menu items in servings that are standardized for portion size and content as those other foodservice establishments and/or franchised outlets, and operates where any combination of at least 14 other foodservice establishments in California that have common ownership or control as the foodservice establishment in question and/or operate as a franchised outlet of a parent company. For example, a foodservice establishment in the unincorporated area of the County that shares the same name and menu of standardized items with two other foodservice establishments owned by the same owner in California and twelve other foodservice establishments operating as franchised outlets of a parent company in California is a chain foodservice establishment.

(b)

“Food” means any substance in whatever form used or intended for use or for sale in whole or in any part for human consumption and includes, but is not limited to, food, meals, snacks, desserts, and beverages of all kinds.

(c)

“Food tag” means any written, printed, or displayed price or descriptor of food offered for sale at a foodservice establishment that is not a menu or a menu board, such as, for example, a label placed next to or on a pre-wrapped sandwich listing the price per serving.

(d)

“Foodservice establishment” means a food facility as defined by Health and Safety Code section 113789 and any amendments thereto, and at which any prepared, non-prepackaged foods are offered for sale and consumption on or off the premises. This term is not intended to cover packaged and other foods in grocery and convenience stores to the extent they sell food for preparation primarily at home, but it does cover sandwich or deli counters or salad bars in a grocery store or chain foodservice establishments that are located within a grocery or convenience store where food is meant to be consumed without further preparation, including at the grocery or convenience store.

(e)

“Menu” means any list of food offered for sale at a foodservice establishment but does not include a menu board or food tag.

(f)

“Menu board” means:

(i)

Any list of food offered for sale at a foodservice establishment that is posted and intended for joint viewing by multiple customers including, but not limited to, back-lit marquee signs above the point of sale at fast-food outlets and chalk boards listing offered food items; or

(ii)

Any list of food offered for sale at a foodservice establishment that is posted and intended for viewing by customers purchasing food to go, such as, for example, a drive-through menu. A menu board is not a menu or food tag.

(g)

“Menu item” is defined as follows:

(i)

Menu item means an item listed or described on a menu, a menu board, or a food tag that is prepared and offered for sale in a foodservice establishment.

(ii)

A menu item also means that portion of a combination item appearing on a menu, a menu board, or a food tag that is prepared, non-prepackaged food when the item appearing on the menu, menu board, or food tag is a combination of items, such as a “kids meal” or “combination meal,” that includes: (1) prepared, non-prepackaged foods, such as a hamburger and a serving of french fries; and (2) prepackaged foods, such as milk.

(iii)

A menu item does not include prepackaged food as provided by Health and Safety Code sections 109875 et seq. or Health and Safety Code sections 113700 et seq.

(h)

“Permit to operate” means the non-transferable permit issued by the Health System’s Environmental Health Division to a foodservice establishment pursuant to Health and Safety Code section 114381 and any amendments thereto.

4.58.030 Menu Labeling Required at Chain Foodservice Establishments.

(a)

Required nutritional information. Each chain foodservice establishment shall make nutritional information available to consumers for all menu items. This information shall include at a minimum all of the following, per menu item, as each such menu item is typically prepared and offered for sale:

(i)

Total number of calories;

(ii)

Total number of grams of saturated fat;

(iii)

Total number of grams of trans fat;

(iv)

Total number of grams of carbohydrates; and

(v)

Total number of milligrams of sodium.

Such nutrition information shall be made available to consumers per menu item on printed menus, pamphlets, brochures, posters, or similar hardcopy documents that are plainly visible to consumers at the point of ordering. The printed information shall also include in a clear and conspicuous manner the following statement: “Recommended limits for a 2,000 calorie daily diet are 20 grams of saturated fat and 2,300 milligrams of sodium.” Nothing in this Chapter prohibits a foodservice establishment from providing additional nutritional information. If a menu item includes prepackaged, non-prepared items, the foodservice establishment shall indicate in some manner that the required nutritional information excludes prepackaged items by using an asterisk next to the item referencing a note stating that “Nutrition totals for combination meals exclude prepackaged items.”

(b)

Information on menus. Each chain foodservice establishment that uses a menu shall:

(i)

Provide the nutritional information required by subsection (a) above next to or beneath each item on the menu in a size and typeface that is at least as prominent as that used for either the name or price of the menu item; and

(ii)

Include on the menu in a clear and conspicuous manner the following statement: “Recommended limits for a 2,000 calorie daily diet are 20 grams of saturated fat and 2,300 milligrams of sodium.”

(c)

Information on menu boards and food tags. Each chain foodservice establishment that uses a menu board or food tag shall provide the nutritional information required by subsection (a)(i) above (total number of calories) next to each item on the menu board or food tag in a size and typeface that is at least as prominent as that used for either the name or price of the menu item on the menu board or food tag.

(d)

Range of nutritional information for different flavors and varieties. Each chain foodservice establishment shall for each menu item which is offered in more than one size that is listed as a single item may either list the different sizes separately with the information required by this ordinance or list the item as a single menu item, listing the range of values for the nutritional information for all sizes of that item (the minimum to maximum numbers of calories, the minimum to maximum range of sodium content, etc.) offered for sale, but in either case the alternative information formats listed in subsection (a) above must separately list the information about each size. For menu items which are listed as one item covering a range of varieties, the chain foodservice establishment must provide the consumer with the information required by this ordinance for each variety in one of the formats listed in subsection (a) above, and a range of the values for those items on menus or menu boards may be provided so long as they indicate in some manner that specific information about each variety is available on request.

(e)

Disclaimers. Menus, menu boards, and food tags may include a disclaimer that indicates that there may be minimal variations in nutritional content across servings based on special ordering requests or slight variations in overall size and quantities of ingredients.

(f)

Verifiable and reliable information required.

(i)

The nutritional information required by this section shall be based on a verifiable analysis of each menu item, which may include the use of nutrient databases, laboratory testing, or other reliable methods of analysis.

(ii)

A chain foodservice establishment is in violation of this section if the provided nutritional information required by this section either:

(1)

Is not present or is not in the form required by this section;

(2)

Is different than what the chain foodservice establishment knows or believes to be the true and accurate information; or

(3)

Deviates by more than 20 percent from what actual analysis or other reliable evidence shows to be the average content of a representative sample of the menu item.

(g)

Food items excluded. This section does not apply to:

(i)

Items placed on the table or at a counter for general use without charge, such as, for example, condiments;

(ii)

Alcoholic beverages; and

(iii)

Items that are on the menu, menu board, or food tag for fewer than a total of thirty days in a calendar year.

4.58.040 Enforcement; Suspension of Operating Permit.

(a)

Requirement for compliance; violations. It shall be unlawful for any person who owns or operates a chain foodservice establishment subject to the restrictions of this Chapter to fail to comply with its provisions. A chain foodservice establishment’s permit to operate may be suspended by the Health System’s Environmental Health Division Director or his or her designee upon a finding, after notice and opportunity to be heard, that the foodservice establishment has violated this Chapter. Each day during which a chain foodservice establishment is not in compliance with the requirements of this Chapter constitutes a separate violation.

(b)

Enforcement procedures. Enforcement of this Chapter shall be done by the Health System’s Environmental Health Division in accordance with the notice and hearing requirements contained in Health and Safety Code section 114405 and any amendments thereto.

4.58.050 Sections Found Invalid.

If any provision, clause, section, sentence or paragraph of this ordinance or the application thereof to any person or circumstances shall be held invalid, such validity shall not affect the other provisions of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared to be severable.

SECTION 3. This Ordinance shall be effective on January 1, 2009.

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