Sodium Wars: New York City’s Effort to Warn

— by Forrest Young

ABSTRACT:   In 2015, New York City’s Board of Health announced new regulations requiring chain restaurants to provide warnings about the sodium in their menu options.  In February, a trial judge rejected the National Restaurant Association’s challenge. The First Department issued a temporary stay while the case is on appeal.

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On February 26, 2016, New York Supreme Court Judge Eileen Rakower issued an order denying the National Restaurant Association’s petition to prevent implementation of New York City’s new health code regulation requiring select restaurants to label foods with high sodium content. Nat’l Restaurant Ass’n v. N.Y.C. Dep’t of Health and Mental Hygiene, No. 654024/15, 2016 WL 751881 (Sup. Ct. New York Cty. 2016).

The new regulation, enacted as Section 81.49 of the New York City Health Code, would require chain restaurants (those with 15 or more locations under the same name) to post a saltshaker symbol next to standard menu items with 2,300 milligrams of sodium or more. The regulation also mandates the menu to include a warning that reads “Warning: [this salt symbol] indicates that the sodium (salt) content of this item is higher than the total daily recommended limit (2300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke.” Restaurants found in violation of the section would be required to pay a 200 dollar fine.

In New York, an administrative regulation will be upheld if it has a “rational basis, and is not unreasonable, arbitrary or capricious.” Nat’l Restaurant Ass’n, 2016 WL 751881 at *1.  To receive a preliminary injunction, the petitioner must show by clear and convincing evidence that must show (1) a likelihood of success on the merits, (2) a danger of irreparable harm without such relief, and (3) a balancing of equities in its favor. Id.   The National Restaurant Association argued that Section 81.49 was invalid because (1) it violated separation of powers; (2) it is arbitrary and capricious; (2) it violates members’ First Amendment rights; and (4) it was preempted by the federal Nutrition Labeling and Education Act (NLEA). Id.

The court took these issues in turn, first holding that the sodium warnings do not violate separation of powers because the Board of Health relied on its public health expertise in regulating restaurants and the rules are not outside the bounds of its authority. The court held that the Board did not overstep into legislative-policy making because it “relied on its expertise in weighing the scientific evidence concerning the risks associated with excess sodium consumption.” The court distinguished these regulations from previous regulations limiting proportions of sugary drinks because “in contrast to the Soda Ban, by adopting Section 81.49, the Board did not devise a new rule that “significantly changes” the manner in which menu items containing sodium are provided to customers at eating establishments. It is within the Board’s regulatory authority to require the posting of information and warning labels concerning health risks.” Id. at *3.

Next, the court rejected the Association’s claim that the regulations were arbitrary and capricious finding that the agency’s determination was predicated on rational concerns regarding known health risks caused by high sodium intake. Nat’l Restaurant Ass’n, 2016 WL 751881 at *3.   Judge Rakower accepted the City’s contention that the regulations were a reasonable approach to the problem because the average New Yorker consumes nearly 1,000 milligrams more than the daily recommendation, and the average chain restaurant meal contains 3512 milligrams of sodium,. Id. The court held that the regulations were not unduly burdensome on chain restaurants because of their uniformity of menus options and preparation techniques.   Id.

The First Amendment challenge was dismissed on the basis that the warnings empower consumers with necessary information. Although the court recognized that commercial speech is protected, it found that the regulation simply provides consumers with “factual and uncontroversial” information. Id. at *4. Judge Rakower reasoned that “[p]ersonal autonomy is not hindered, but rather encouraged by providing information so that consumers can make informed decisions about health; said differently, information promotes autonomy, giving a consumer the opportunity to make choices appropriate to himself or herself individually.” Id. at *2.

Finally, the court directly rejected the Association’s preemption claim using a plain language interpretation. The NLEA “provides that express preemption provision ‘shall not be construed to apply to any requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food.’” Id. at *4. The court held that this language clearly allows states and localities to require their own food safety warnings, and that Section 81.49 falls squarely within those confines. Id.

For those reasons, the court ultimately rejected both the Association’s petition for declaration judgment, and preliminary injunction.   On February 29, 2016, the First Department granted an interim stay on enforcing the new rule, which would have gone into full-effect on March 1, 2016.

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