75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2726
Sponsored by Representatives KOTEK, GREENLICK, Senator BATES;
Senator MORRISETTE
CHAPTER ................
AN ACT
Relating to nutritional information for consumers; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 6 of this 2009 Act:
(1) 'Alcoholic beverage' has the meaning given that term in ORS
471.001.
(2)(a) 'Chain restaurant' means a restaurant located in Oregon
that:
(A) Is part of an affiliation of 15 or more restaurants within
the United States;
(B) Sells standardized menu items that constitute 80 percent or
more of the menu items served in the restaurant and at least 14
of the other affiliated restaurants; and
(C) Operates under a trade name or service mark, both as
defined in ORS 647.005, that is identical or substantially
similar to the trade names or service marks of the affiliated
restaurants.
(b) 'Chain restaurant' does not mean:
(A) A restaurant located inside a facility that is subject to
State Department of Agriculture inspection under an interagency
agreement described in ORS 624.530, unless the trade name or
service mark for the restaurant differs from the trade name or
service mark of the facility containing the restaurant;
(B) A cafeteria of a public or private educational institution;
(C) A health care facility as defined in ORS 442.015; or
(D) A motion picture theater.
(3) 'Food product' means a discrete unit serving of a
ready-to-eat food or beverage.
(4)(a) 'Food tag' means an informational label placed near a
menu item that is identified or indicated by the label.
(b) 'Food tag' does not mean a menu or menu board.
(5) 'Menu' means a pictorial or written description of menu
items that does not have a fixed location and is not intended for
joint viewing by multiple patrons.
(6)(a) 'Menu board' means a pictorial display or written
description of menu items that:
(A) Is located where the customer places an order for a menu
item; and
(B) Is not a menu or a food tag.
(b) 'Menu board' does not mean a pictorial display used solely
for the purpose of marketing.
Enrolled House Bill 2726 (HB 2726-B) Page 1
(7)(a) 'Menu item' means a prepared food product or a group or
combination of prepared food products that is offered on a menu,
menu board or food tag as a distinct article for sale.
(b) 'Menu item' does not mean the following:
(A) Condiments that are made available on tables or counters
for general use without charge.
(B) Food products that are offered for sale less than 90 days
during a calendar year.
(C) Alcoholic beverages, except as provided by rule by the
Department of Human Services as described in section 4 of this
2009 Act.
(D) Food products in sealed manufacturer packaging.
(8) 'Restaurant' has the meaning given that term in ORS
624.010. + }
SECTION 2. { + (1) A chain restaurant shall determine typical
values of the following for each menu item offered by the
restaurant:
(a) Total calories.
(b) Total grams of saturated fat.
(c) Total grams of trans fat.
(d) Total grams of carbohydrates.
(e) Total milligrams of sodium.
(2) The typical values described in subsection (1) of this
section must be based on calorie and nutrient databases,
verifiable reference values, government standards, laboratory
testing or other methods for determining nutritional values
recognized by the Department of Human Services by rule.
(3) The chain restaurant shall maintain a written list of the
typical values described in subsection (1) of this section for
all of the menu items of the restaurant and make copies of the
list available for distribution to customers. The chain
restaurant shall provide a copy of the list to a customer who is
present in the restaurant and requests nutritional information
regarding any menu item.
(4) A chain restaurant may not make available to customers any
typical values determined under this section that are
substantially inaccurate or that the restaurant knows or should
know to be false or misleading. + }
SECTION 2a. { + (1) The disclosure of calorie content
information under section 3 of this 2009 Act on a menu or menu
board next to a standard menu item that is a combination of at
least two standard menu items on the menu or menu board must,
based on all possible combinations for that standard menu item,
include the minimum amounts of calories for the calorie content
information and the maximum amounts of calories for the calorie
content information. If there is only one possible total amount
of calories, that total must be disclosed.
(2) The disclosure of calorie content information on a menu or
menu board next to a standard menu item that is not an appetizer
or dessert, but is intended to serve more than one individual,
shall:
(a)(A) Include the number of individuals intended to be served
by the standard menu item; and
(B) Include the calorie content information for an individual
serving.
(b) If the standard menu item is a combination of at least two
standard menu items, include the disclosure required under
subsection (1) of this section. + }
Enrolled House Bill 2726 (HB 2726-B) Page 2
SECTION 3. { + (1) If a chain restaurant serves a menu item
that is not a self-service item, the chain restaurant shall have
a menu, menu board or food tag that:
(a) Discloses nutritional information for the menu item as
required by this section; and
(b) Is readily visible for customer use at the location where
the customer places the order for the menu item.
(2)(a) If a chain restaurant offers a menu item for
self-service, the chain restaurant shall have a menu board or
food tag, for each area of the restaurant in which the item is
displayed, that:
(A) Discloses nutritional information for the menu item as
required by this section; and
(B) Is readily visible in the area where the menu item is
displayed.
(b) If a chain restaurant offers a menu item for self-service
that the restaurant also offers on a basis that is not
self-service, the restaurant shall ensure that the area where the
item is offered on a basis that is not self-service complies with
subsection (1) of this section.
(3) If a chain restaurant uses a menu or menu board, the menu
or menu board must include the following:
(a) A statement of the total calories for each of the menu
items listed on that menu or menu board. The total calorie
statement must be in a conspicuous place near the other menu or
menu board information for that menu item. If the menu or menu
board lists prices, the total calorie statement must be of a size
and typeface no less prominent than the size and typeface used to
display the price of the menu item. If the menu or menu board
does not list prices, the total calorie statement must be of a
size and typeface no less prominent than the size and typeface
used to display the least prominent of any other information
stated on the menu or menu board.
(b) In a conspicuous place, a statement listing the daily
intake amounts of calories, saturated fat and sodium recommended
by the Department of Human Services.
(c) In a conspicuous place, a statement that additional
nutritional information is available upon request.
(4) If a chain restaurant uses food tags, the restaurant shall
display the following:
(a) A statement of the total calories for the menu item in a
conspicuous place on the tag. If the food tag states the price of
the menu item, the total calorie statement must be of a size and
typeface no less prominent than the size and typeface used to
display the price of the menu item. If the food tag does not
state the price, the total calorie statement must be of a size
and typeface no less prominent than the size and typeface used to
display the least prominent of any other information stated on
the tag.
(b) In a conspicuous place, a statement listing the daily
intake amounts of calories, saturated fat and sodium recommended
by the Department of Human Services.
(c) In a conspicuous place, a statement that additional
nutritional information is available upon request.
(5) A chain restaurant may post disclaimers stating that the
actual nutritional value of menu items may vary from the stated
total calories or other nutritional information due to variations
in preparation, size or ingredients or for custom orders.
Enrolled House Bill 2726 (HB 2726-B) Page 3
(6) A chain restaurant may supplement the nutritional
information disclosures required by this section and sections 2
and 2a of this 2009 Act with additional consumer information. + }
SECTION 4. { + (1) The Department of Human Services shall
adopt rules the department considers reasonable for the
administration and enforcement of sections 1 to 5 of this 2009
Act. The rules adopted by the department must include, but need
not be limited to, rules for the rounding of stated values and
the establishment of specifications for total calorie statements
and other required statements. In adopting rules under this
section, the department shall:
(a) To the extent the department considers practicable, follow
any relevant United States Food and Drug Administration
practices, standards and rules for nutritional labeling; and
(b) Seek input from representatives of chain restaurants.
(2) The department shall adopt rules establishing conditions
under which a menu board serving the drive-through area of a
chain restaurant may qualify for a full or partial exception from
sections 2a and 3 of this 2009 Act. The rules shall make an
exception available only if compliance with section 2a or 3 of
this 2009 Act would require the violation of local land use laws
or sign ordinances, or is impracticable due to site-specific
conditions. As used in this subsection, 'drive-through area '
means an area where customers place orders for and receive menu
items while occupying motor vehicles.
(3)(a) Notwithstanding subsection (1) of this section, the
following are the typical values for alcoholic beverages:
(A) For wine, 122 calories, 4 grams of carbohydrate and 7
milligrams of sodium for a five-ounce serving;
(B) For beer other than light beer, 153 calories, 13 grams of
carbohydrate and 14 milligrams of sodium for a 12-ounce serving;
(C) For light beer, 103 calories, 6 grams of carbohydrate and
14 milligrams of sodium for a 12-ounce serving; and
(D) For distilled spirits, 96 calories for a 1.5-ounce serving.
(b) A chain restaurant shall use the typical values described
in paragraph (a) of this subsection when calculating the total
calories for a menu item that includes one or more alcoholic
beverages.
(c) The department:
(A) May adopt rules to require total calorie disclosures for an
alcoholic beverage or a menu item that contains an alcoholic
beverage, only if the alcoholic beverage or menu item is offered
by a chain restaurant for 90 or more days during a calendar year;
and
(B) May adopt rules that exempt containers or dispensers of
alcoholic beverages from the use of food tags to state standard
calorie values. + }
SECTION 5. { + (1) The Department of Human Services may
inspect chain restaurants for compliance with sections 2, 2a and
3 of this 2009 Act and department rules adopted under section 4
of this 2009 Act. The person operating the chain restaurant
shall, upon request of the department, permit access to all parts
of the restaurant and any records in the possession of the
restaurant regarding nutritional values or menu items and provide
menu item samples for nutritional value testing by the
department.
(2) If a chain restaurant violates a provision of section 2, 2a
or 3 of this 2009 Act or a rule adopted under section 4 of this
2009 Act, the department shall provide the restaurant with
written notice informing the restaurant of the violation and
Enrolled House Bill 2726 (HB 2726-B) Page 4
stating that the restaurant may avoid a civil penalty for the
violation by curing the violation within 60 days. If the chain
restaurant fails to cure the violation within 60 days, the
department may impose a civil penalty of not less than $250 and
not more than $1,000 for the violation. For a continuing
violation, each 30-day period that the violation continues after
the preceding imposition of a civil penalty is a separate offense
subject to a separate civil penalty. The department is not
required to provide the chain restaurant with an opportunity to
cure the continuing violation before imposing a civil penalty for
the continuing violation. + }
SECTION 6. { + A local government may not adopt or enforce a
local requirement for the determination or disclosure of
nutritional information by a restaurant. + }
SECTION 7. { + Sections 1 to 6 of this 2009 Act do not create
a cause of action and may not be asserted as the basis for a per
se negligence claim. + }
SECTION 8. { + (1) Sections 1 and 2 of this 2009 Act become
operative January 1, 2010.
(2) Sections 2a, 3 and 5 of this 2009 Act become operative on
January 1, 2011. + }
SECTION 9. { + This 2009 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2009 Act takes effect on its
passage. + }
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Passed by House May 15, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 1, 2009
...........................................................
President of Senate
Enrolled House Bill 2726 (HB 2726-B) Page 5
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2726 (HB 2726-B) Page 6