On January 5, 2016, The Public Health Law Center filed a friend-of-the court (amicus curiae) brief in support of New York City’s groundbreaking new rule requiring that fast food restaurants place salt shaker warning symbols next to menu items that are high in sodium. The brief, developed in collaboration with the Public Good Law Center and ChangeLab Solutions, was joined by a dozen other leading medical and public health organizations.
The brief was filed because the National Restaurant Association sued the city last December, claiming that the science regarding sodium’s health effects is unsettled and that the rule is invalid. We disagree. On February 24, the Honorable Eileen Rakower, Justice of the Supreme Court of the State of New York for New York County, will hear the parties’ arguments on the National Restaurant Association’s motion to enjoin enforcement of the Rule and declare it invalid.
Because the case will present important legal issues of first impression, the outcome of the litigation may set a precedent for similar efforts across the country.
The New York City Board of Health unanimously adopted the rule last September, to be enforced beginning March 1, 2016, requiring chain restaurants to display a warning label on menus and menu boards if the restaurant offers food items containing high levels of sodium. The regulation applies to all restaurants that are part of chains with 15 or more locations nationwide, and requires a salt shaker warning icon to be displayed alongside any menu item containing more than the federally-recommended daily intake limit of 2300 milligrams of sodium.
The following statement must also be posted conspicuously at the point of purchase: “Warning: [shaker 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.”
Our brief sets out the current state of the science on sodium, and applies that science to the National Restaurant Association’s arguments. The brief also rebuts specific legal arguments made in the lawsuit:
National Restaurant Association argument: The rule is arbitrary and capricious in its coverage of certain venues and certain foods but not others.
Public Health Law Center response: The rule’s failure to reach some venues is simply due, for the most part, to the actual limit of the Board’s authority. The Board can’t prescribe rules for entities it doesn't regulate. Further, the rule applies mainly to chain restaurants that have been subject to the City’s menu labeling ordinance (approved by the courts) since 2007. Courts have long held that cities and states may approach widespread problems in an incremental fashion over time.
National Restaurant Association argument: The rule violates the First Amendment of the U.S. Constitution because it impermissibly compels restaurants to speak.
Public Health Law Center response: The rule requires only the disclosure of factual and noncontroversial information about the menu items. These disclosures advance a legitimate public interest (which is all that is required), and the law should therefore be subject to a well-established and lenient standard of review, which it easily satisfies.
National Restaurant Association argument: The rule is preempted, or barred, by federal law regarding the labeling of food.
Public Health Law Center response: The Association argues first that the city-mandated sodium warnings somehow constitute a “health claim,” and that regulation of health claims is the exclusive province of the U.S. Food and Drug Administration under the federal Nutrition Labeling and Education Act. They also argue that the rule is preempted because the warnings constitute “nutrition disclosures,” which local authorities are preempted from regulating under menu labeling provisions of the Affordable Care Act. We argue the ACA explicitly allows local and state authorities to impose food safety warnings. We also argue that the warnings do not constitute health “claims” and that they are indeed what the City says they are – safety warnings, applicable only to those menu items containing potentially hazardous sodium levels.
The Public Health Law Center engaged highly-regarded advocates Ted Mermin and Tom Bennigson of the Public Good Law Center to develop the brief. Mermin is a former Deputy Attorney General of California, and Bennigson is an experienced public interest and civil rights litigator. In preparing the brief, Mermin and Bennigson worked closely with legal experts Ian McLaughlin and Sabrina Adler of ChangeLab Solutions, and Kerry Cork of the Public Health Law Center.
The organizations signing on to the brief include The American Heart Association, The Center for Science in the Public Interest (CSPI), ChangeLab Solutions, The Coalition for Asian American Children and Families, The Food Trust, The National Association of Chronic Disease Directors (NACDD), The National Association of County and City Health Officials (NACCHO), The National Association of Local Boards of Health (NALBOH), The New York State Public Health Association (NYSPHA), The New York Academy of Medicine, The New York State Academy of Pediatrics (NYSAAP), The Notah Begay III Foundation (NB3F), The Public Health Association of New York City (PHANYC), and the Public Health Law Center.
For more information, contact Kerry Cork at Kerry.Cork@mitchellhamline.edu.
February 22, 2016