The team spent the most time devising regulatory language that would be relatively easy for restaurant owners to comply with, and for the department to enforce. Mostly it was about feasibility, says Goldstein.

Everyone wanted to do it, but it took a really long time for us to figure out how. You cant just say You cannot serve products with artificial trans fat, because theres no way to [enforce] that. They werent heated discussions, they were just long. We all sat in a room and looked at each other and said, how are we going to write this regulation? ^[31]

The first issue was measurement. The team planned to ask restaurant inspectors to monitor compliance by reading labels on the products used to prepare foods. Restaurants would be asked to retain original labels for food products that were or contained fats, oils or shortenings, or to provide documentation listing trans fat content for foods that did not come with such labels, since restaurant products, unlike packaged goods in grocery stores, are not required to bear nutrition facts panels on their labeling. But how would inspectors distinguish between naturally occurring trans fat (which would not be restricted) and artificial ones, when the labels did not? The issue literally kept Goldstein up at night. It was a tricky operational question, says Goldstein.

Theres naturally occurring trans fat and artificially occurring trans fat. Were not regulating the naturally occurring trans fat. So if you have a product that contains both butter, which contains natural trans fat, and partially hydrogenated vegetable oil, how do you determine the trans fat content? The label doesnt distinguish. In fact, its very difficult for a labratory to distinguish the difference between natural and artificial trans fat. So we had to come up with a way to avoid the natural, but identify the artificial.

Gail Goldstein discusses the difficulty of discerning between naturally occurring transfats and artificial transfats.

One night, Goldstein had an aha moment. They needed a two-step process. Rather than just looking at the number of grams of trans fat in a product, the restaurant inspectors would first look for partially hydrogenated oils in the ingredient list. If the oils were listed, that would mean artificial trans fat were present and only then would inspectors look at the trans fat content. The team had its wording. Restaurants could use products containing up to 0.5 grams of trans fat (an FDA threshold) per serving. ^[32] The regulation would apply to all licensed food establishments, including restaurants, school cafeterias, caterers, senior centers, and street-food vendors. ^[33]

Then there was enforcement. Silver and Marcus discussed the options. As with every agency decision, the variables were cost, time and personnel. I said everything is enforceable, given the resources, says Marcus.

That means that if you want to check on whether or not various products contain trans fat, you need to check labels. That takes time. When you are inspecting 24,000 restaurants, even if it takes an extra 10 to 15 minutes, thats a considerable amount of fulltime equivalents in people hours. We needed to make sure that we had the resources to carry that out and still meet the expectation that wed inspect all restaurants at least once a year.

Silver knew that any program that incurred additional costs could raise concern from the commissioner, mayor or Board of Health. She says that, given assurances that the department would consider difficulties in meeting inspectional targets for food service establishments, Marcus was convinced that this issue should not torpedo the initiative. She expands:

Anything that you do to add to the time of the inspections means [the inspectors] may get fewer inspections done. So we had to win them over and talk to them many times We didnt have any specific funding, so Elliott [Marcus] and his team of inspectors had to do some extra work with no extra money. But it wasnt so much extra work that it wasnt feasible. ^[34]

In early August 2006, the team presented its plan to Commissioner Frieden. Their proposal called for a six-month phase-out period for artificial trans fat in fry oils and spreads, and in baking shortenings. It stated: No foods containing artificial trans fat, as defined in this section, shall be stored, distributed, held for service, used in preparation of any menu item or served in any food service establishment. An exception was made for foods, like potato chips, served directly to patrons in the manufacturers original sealed package, proposed by Lopez, for legal reasons. Frieden approved the initiative.

But their job was not done. Only if Mayor Bloomberg agreed could they take the proposal to the Board of Healthwhich would meet next on September 26. The first step was the health commissioner had to win over the mayor, recalls Silver.

We prepared detailed presentation and briefing materials and a health impact analysis for Mayor Bloomberg, whos a numbers man. He wanted to know, whats the benefit of this, how many lives will it save? And we had to try and do our best estimates of epidemiologic impact, which are difficult in many of these measures, because its not always entirely clear.

Their briefing packet and slide show detailed the dangers of trans fat, the proposed restriction, and its expected benefits. For example, they noted that in 2004, 23,000 New York City residents had died from heart disease, and that nearly one-third of those were under 75. They also cited scientific studies that estimated as much as 23 percent of coronary heart disease events could be avoided by replacing trans fat with healthier alternatives.

The team tried to anticipate objections from the mayor and members of the Board of Health. No doubt city leaders would ask how the restriction would affect small business owners. What about expected pushback from the restaurant industry? How should the politicians respond? Was the science ironclad? There would also be queries about the nanny state. Wouldnt a restriction on trans fat smack of paternalistic government trying to dictate to citizens what they should and should not eat? Silver and her team hoped Commissioner Frieden could sell the restriction to City Hall and the Mayor on the grounds that the benefits outweighed the risks.