Whether New York City’s sodium warning rule is a scientifically controversial, arbitrary and capricious, constitutionally invalid measure preempted by federal law, or whether the sodium warning is a scientifically sound, legally well-grounded measure representing a reasonable response to a public health crisis.
In September 2015, the New York City Board of Health unanimously adopted a groundbreaking sodium warning rule, 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 New York City 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 National Restaurant Association (NRA) sued the city in December 2015, claiming that the science regarding sodium’s health effects is unsettled, that the rule is arbitrary and capricious, violates the First Amendment, and is preempted by federal law. 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.
On January 5, 2016, the Public Health Law Center filed an amicus curiae brief in support of New York City’s rule. The brief, developed in collaboration with the Public Good Law Center and ChangeLab Solutions, was prepared on behalf of the American Heart Association and was joined by a dozen other leading medical and public health organizations. The brief sets out the current state of the science on sodium, describing the clear and continued scientific consensus regarding the causes of and treatment for hypertension and broad acceptance of the need for a reduction in dietary salt. The brief also rebuts the NRA’s other legal arguments, arguing that (1) far from arbitrary or capricious, the Rule’s lines are drawn with a keen understanding of the boundaries of the Board’s authority; (2) the Rule works in harmony with the First Amendment, which favors factual disclosures in the commercial context; and (3) the presumption against preemption of local public health measures runs strongly here. Also, the Rule is not preempted by federal law, because the preemption provisions of the Nutrition Labeling and Education Act regarding health “claims” do not apply in this context, and even if they did, the explicit savings clause in the federal menu labeling law would except the Rule from preemption.
On February 24, 2016, the Supreme Court of the State of New York (the trial-level court) rejected the National Restaurant Association’s legal challenge to New York City’s sodium warnings rule. The restaurant industry appealed and on Feb. 29, 2016, a New York City appellate judge granted the industry's request to briefly pause enforcement of the City's sodium warnings rule while the appellate court determined how it wants to rule on the merits of the case. On March 10, 2016, the Public Health Law Center, in collaboration with Public Good Law Center and ChangeLab Solutions, filed an amicus memorandum opposing the National Restaurant Association’s request for a preliminary injunction pending a ruling on the merits. The brief, filed at the Appellate Division of the Supreme Court of the State of New York, was joined by the American Heart Association and other amici who signed onto the Center’s January 2016 amicus brief.
On February 10, 2017, the Appellate Division of the New York Supreme Court upheld New York City’s sodium warnings rule. In a unanimous decision, the five justices determined that the Rule was a proper exercise of the Board of Health’s authority; that it was not arbitrary and capricious; that it did not violate the First Amendment; and that it was not preempted by federal law. After thirty days passed and the National Restaurant Association did not appeal this decision, the legal battle over the New York City’s sodium warnings rule ended and the rule remained in effect.