The NYC Board of Health May Require Chain Restaurants to Post Warnings Alerting Customers to High Sodium Menu Items.
The Issue: The New York City Board of Health adopted a rule requiring chain restaurants to display warning labels on menus and menu boards when a single menu item exceeds by itself the federally recommended daily intake limit of sodium. While some restaurant chains immediately complied, taking the opportunity to better inform their customers of the presence of often unexpectedly high levels of sodium in certain menu items, the National Restaurant Association (NRA) sued to block enforcement of the Rule. The NRA argued that (1) under New York administrative law, the Board of Health lacked authority to promulgate the rule; (2) the rule is “arbitrary and capricious” because it applies to foods sold in chain restaurants but not in other venues; (3) the rule violates the First Amendment because it impermissibly compels restaurants to speak; and (4) the rule is preempted by federal law regarding food labeling.
Why It Matters: High blood pressure is the second-leading cause of preventable death in the United States, behind only smoking. It is responsible for approximately 395,000 premature deaths a year – about one in six deaths of all adults. Overconsumption of salt is the major factor increasing blood pressure. Over 100,000 deaths per year in the United States are attributable specifically to high dietary salt, more than any other single dietary factor. About a quarter of the sodium consumed in the United States comes from restaurants, with a majority from fast food outlets. But most consumers significantly underestimate their sodium consumption, especially when eating food from fast food restaurants. Moreover, fast food chain restaurants in New York City, as in many communities, are particularly concentrated in African-American communities; African-Americans have higher rates of high blood pressure and consequent cardiovascular disease than any other racial group. The warnings are particularly important for them. New York’s sodium warning mandate is the first of its kind in the United States, so the case will set precedent for similar measures elsewhere.
More generally, the NRA’s push for expansive readings of preemption, of the First Amendment as applied to regulation of commerce, and of the “arbitrary and capricious” standard is an example of industry’s too often successful efforts to reshape legal doctrine to make it more difficult for regulators to protect the public from threats to public health and safety. Opposing such efforts stands at the core of Public Good’s mission.
Public Good’s Contribution: Underlying all of the NRA’s arguments was the claim that the required warnings are scientifically controversial, because the dangers of high sodium consumption are allegedly unclear. Accordingly, Public Good filed briefs at three stages of the proceedings on behalf of medical and public health organizations expressing support of the regulation, setting out the current (uncontroversial) state of science concerning the effects of high sodium consumption – in opposition to industry misrepresentations – and applying that understanding of the science to the last three of the NRA’s claims, those with national implications. The briefs clarified important aspects of applicable law concerning the scope of preemption under federal food labeling law, what does and does not constitute “arbitrary and capricious” agency action, and, most importantly, application of the First Amendment to warnings in the commercial context.
Amici represented by Public Good: Public Good’s briefs were filed on behalf of the American Heart Association, the American Medical Association, the Center for Science in the Public Interest, Changelab Solutions, the Coalition for Asian American Children and Families, the Food Trust, the Medical Society of the State of New York, the National Association of Chronic Disease Directors, the National Association for County and City Health Officials, the National Association of Local Boards of Health, the New York State Public Health Association, the New York Academy of Medicine, the New York State Academy of Pediatrics, the Notah Begay III Foundation, the Public Health Association of New York City, and the Public Health Law Center.
Outcome: The Board of Health prevailed at every stage of the proceedings briefed by Public Good. The trial court ruled that the NRA was unlikely to prevail on any of its claims and therefore denied the motion for a preliminary injunction. Next, the appellate court lifted a stay on enforcement of the regulation that had been imposed by one of its judges after the trial court decision; the regulation went into effect, with enforcement beginning June 6, 2016. Finally, in February 2017, the appellate division unanimously upheld the Rule against the NRA’s challenge, finding that the Rule did not exceed the Board of Health’s authority, was not arbitrary and capricious, did not violate the First Amendment, and was not preempted by federal law. The court specifically noted the contribution of Public Good’s amicus brief, citing by name individual organizations that had signed onto the brief and whose scientific expertise had presumably affected the court’s decision. The very first sentence of the decision noted that, when consumed in excess, salt is “a significant health hazard,” reflecting the importance that the court placed on the public health message contained in the amicus brief and the authority of the organizations that submitted it. The NRA finally ended its string of appeals two months later.
49 N.Y.S. 3d 18 (N.Y. App. Div. Feb. 10. 2017).