Opinion: It's time to pass a City Council amendment giving restaurants greater flexibility on delivery app platforms

The federal Public Health Emergency for COVID-19 formally ended Thursday. And while the destruction wrought by the pandemic on our communities is still very much with us – and for too many, has forever altered their lives – this marks an important milestone as we continue the hard work of recovery.

But while many of the regulations and restrictions imposed during the pandemic have long eased or expired, one here in New York remains stubbornly with us – and it is hurting our small businesses. It’s time for this to change. 

The regulation in question – initially imposed by the New York City Council in 2020 – was well-intentioned: it placed a limit on what delivery app platforms such as DoorDash, Grubhub and UberEats can charge restaurants to take orders and deliver food to customers. At a time when the only option for restaurants was take-out and delivery as the entire hospitality industry was turned upside down, it made sense to have firm protections against price gouging. Many other cities across the country did the same. But three years later, a nuance of the law that also restricts what the platforms can charge restaurants for digital marketing services is preventing many small, independent, family-owned restaurants from having the flexibility they need to grow their customer base and compete with bigger brands who have a seemingly unlimited war-chest of advertising resources. 

Fortunately, there’s a simple, common-sense way to fix this that has the support of more than two dozen Council members, various chambers of commerce, independent restaurants and a host of community organizations. A proposed amendment now before the Council would maintain the protections for restaurants by ensuring they can continue to be listed on the delivery platforms at current rates, including the capped delivery charges. But importantly it allows them the option to voluntarily choose from different marketing levels that best suit their needs. 

At a hearing for the proposed change held last month, an array of voices came out to express their support for this sensible compromise – and not just those from the Bronx like us. As Robert Lee, the owner of Tada Noodles, which serves Korean-Chinese cuisine from its Long Island City location, aptly noted, the amendment will give him “the flexibility to increase our marketing spend with delivery apps. And, you know, it is our choice - we can increase it, decrease it whenever we need to. I see it as an investment. I see it as a sale.”  

He’s right. It is his choice, as it should be for anyone who runs a small business. They must cope with a high degree of regulatory oversight as is – from licensing to inspections. For the government to act as if it knows how to make decisions for their business better than they do is an example of bureaucracy at its worst. 

As another local restaurateur recently wrote, “Imposing a blanket  solution upon the entire industry precludes those restaurants that have different marketing needs from allocating their resources where they would have the most impact.” There is so much nuance in the way this diverse industry operates. A one-size-fits-all approach imposed during an emergency simply doesn’t work. It’s why so many other cities who imposed similar measures at the onset of the pandemic have since dropped them entirely or revised them along these lines to allow for more restaurant choice. Lily Rocha, CEO of the Latino Restaurant Association who advocates for members across the country, summarized it bluntly: “New York stands alone in maintaining this pandemic-era restriction.”   

A case in point: early this year, legislation in San Francisco went into effect that mirrors the amendment proposed in New York, enabling restaurants on delivery apps to choose from a range of tiers corresponding to various levels of marketing services. All told, more than 80 price-control measures put in place across the country in the early days of COVID-19 have now been removed or revised. 

So why is New York behind the times?  It’s hard to come up with a good rationale, and in part it is due to the influence wielded by big restaurant groups and major brands who are fighting this change to preserve their advantage over the little guys.

But that’s not fair. And it’s not what we should be standing for as a city.  While the emergency brought on by the pandemic warranted many changes in New York, including some like outdoor dining that are worth preserving, this is not one of them. Our small businesses deserve better – they deserve choice.