Senate Bill No. 419
(By Senators Prezioso, Foster, Stollings and Jenkins)
[Originating in the Committee on Health and Human Resources;
reported March 25, 2009.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §5-1E-6, relating to
the Healthy West Virginia Program; initiating the Healthy
Lifestyles Restaurant Calorie Posting Program; and providing
for legislative rule-making authority.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §5-1E-6, to read as
ARTICLE 1E. HEALTHY WEST VIRGINIA PROGRAM.
§5-1E-6. Restaurant calorie posting program.
(a) The Governor's Office of Health Enhancement and Lifestyle
Planning shall establish a Healthy Lifestyles Restaurant Calorie
Posting Program. The program shall require covered restaurants as
that term is defined in this section to post caloric information at
the point of purchase. The covered restaurant may add the following statement to the menu and menu boards: "The nutrition information
is based on standard recipes and product formulations, however,
variations may occur due to differences in preparation, serving
sizes, ingredients, or special orders." The program shall be
designed to address the problems affecting overweight and obese
individuals and encourage and promote healthy lifestyles.
(b) As used in this section, the following words and phrases
have the following meanings:
(1) "Covered restaurant" means a restaurant doing business in
West Virginia and that has greater than fifteen locations
nationally doing business under the same trade name, regardless of
the type of ownership of the individual restaurant locations,
offering for sale substantially similar menu items, in servings
that are standardized for portion size and content and that operate
under common ownership or control, or as franchised outlets of a
parent business, or do business under the same name. Grocery
stores, as that term is defined in section two, article eight,
chapter sixty of this code, and convenience stores, as that term is
defined in section two, article, thirteen, section, twenty-one of
this code, are not considered a "covered restaurant" for purposes
of this section.
(2) "Menu" means a printed list or pictorial display of a food
item or items, and their price or prices that are available for
sale from a covered restaurant and shall include menus distributed
or provided outside of the establishment.
(3) "Menu board" means any list or pictorial display of a food item or items and their price or prices, visibly posted at the
point of purchase within a covered restaurant or outside of a
covered restaurant for the purpose of ordering from a drive-through
(4) "Menu item" means any individual food item, or combination
of food items, listed or displayed on a menu board or menu that are
sold by a covered restaurant. A menu item does not include beer,
wine or alcoholic liquor as those terms are defined in section
five, article, one, chapter sixty of this code.
(5) "Food item tag" means a label or tag that identifies any
food item displayed for sale at a covered restaurant.
(c) This section shall apply to menu items served in portions,
the size and content of which are standardized at a covered
restaurant. This section does not apply to menu items that are
listed on a menu or menu board for less than thirty days in a
calendar year or for condiments and other items placed on a table
or counter for general use without charge.
(d) The Governor's Office of Health Enhancement and Lifestyle
shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code to
effectuate the provisions of this section. These rules shall not be
effective until July 1, 2010. The rules shall provide for:
(1) The posting of calorie information for menu items that
bear the total number of calories derived from any source for each
menu item they list. This post shall be at the point of purchase;
(2) A means of calculating calories content values using analytic methods and express nutrient content based upon a
verifiable analysis of the menu item;
(3) Standardize formatting for food item tags including font
size and format. The size and typeface must be of equal prominence
to the price or name of the item;
(4) Specific drive-through windows requirements including the
manner in which the caloric content of menu items must be displayed
at or near the drive-through menu board;
(5) Specific salad bar, buffet line, cafeteria service or
arrangement where food is on display requirements that provide
caloric content per standard service per item next to where the
item is offered in a size and typeface that is prominent and
legible from where customers are choosing those items;
(6) A means to account for the range of calorie content values
for different flavors, varieties and food item combinations listed
as a single menu item;
(7) A means for administrative enforcement for violations of
this section; and
(8) Anything additional the Governor's Office of Health
Enhancement and Lifestyle finds necessary to effectuate the
provisions of this section.
(e) Once the program begins operation, marketing shall take
place through all state agencies. The West Virginia Public
Employees Insurance Agency, the Bureau for Medical Services and the
West Virginia Insurance Commission must aggressively market this
program to their members for the purposes of health promotion among their members.
(NOTE: The purpose of this bill is to initiate the Healthy
Lifestyles Restaurant Calorie Posting Program, to require
restaurants to participate in this program and the benefit from the
marketing of this program through state agencies.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
This bill was recommended for passage during the 2009 Regular
Session by Select Committee D on Health.)