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YOUR SOURCE ON FOOD LITIGATION AND REGULATION

On December 1, the New York City Department of Health and Mental Hygiene Board of Health (Board of Health) Sodium Warning Label Rule went into effect.1 The Rule requires food service establishments in New York City with 15 or more locations nationwide to provide a warning for menu items that contain 2,300 mg or more of sodium. Menu items that fall under the rule include “combo” items (e.g., “order-by-number” meals that might include a soup and sandwich or hamburger and French fries).2 New York City is the first city in the United States to require chain restaurants to include sodium warnings on menus or menu boards. Chains with 15 or more locations have 90 days to comply with the new rule before they face a $200 fine.

Background

On September 9, 2015, the Board of Health unanimously adopted a resolution requiring a sodium warning on food items with high sodium content (2300 mg or greater).3 In its Statement of Basis and Purpose, the Board of Health stated that cardiovascular disease is the leading cause of death in New York City, and hypertension is a major risk factor in heart disease. The Board found that Americans—and particularly New Yorkers—consume excessive amounts of sodium. The Statement of Basis and Purpose cited a 2010 study that showed that New Yorkers consumed an average of more than 3,200 mg of sodium per day, well above the recommended limit of 2,300 mg.

The Board determined that restaurants are a primary source of high-sodium foods, and about one-third of the sodium consumed by Americans comes from restaurant food. Because of this, the Board of Health concluded that New Yorkers should be warned about high sodium in foods to empower them to make healthy choices for themselves and their families. The Board of Health therefore amended the New York Health Code to require restaurants in New York City with 15 or more locations nationwide to warn consumers of any menu items that contain 2,300 mg of sodium or more. The required warning must contain an icon of a black and white triangle containing a salt shaker, as depicted below:

salt shaker 

Industry Response

The National Salt Institute immediately opposed the sodium warning, calling it a “misguided attempt to further control what people eat,”4 and cited a New England Journal of Medicine 2014 study that found that the health range for sodium consumption was between 3,000 and 6,000 mg per day.5 The National Restaurant Association similarly opposed the sodium warning, stating that it is “another burdensome, costly, and unnecessary regulation the city has heaped upon restaurateurs.”6

On December 3, 2015—two days after the warning went into effect—the National Restaurant Association filed suit against the Board of Health in the Supreme Court of the State of New York.7 The Association claims that the Board of Health does not have the authority to mandate such a warning. In a similar lawsuit in June 2014, the Association prevailed against the Board of Health when the New York Court of Appeals struck down as arbitrary the city’s efforts to ban the sale of sugar-sweetened drinks larger than 16 ounces in restaurants.8

1 New York City Dept. of Health and Mental Hygiene, Notice of Adoption to Amendments to Article 81 of the New York City Health Code, at http://www.nyc.gov/html/doh/downloads/pdf/notice/2015/noa-section49-article81.pdf; Press Release, New York City Department of Health and Mental Hygiene.
2Press Release, New York City Department of Health and Mental Hygiene, Sodium Warning Label Rule Goes into Effect Tuesday, December 1; NYC Is the First U.S. City to Require Chain Restaurants to Post Warnings (Nov. 30, 2015) http://www.nyc.gov/html/doh/html/pr2015/pr056-15.shtml.
3See Benjamin Mueller and Michael M. Grynbaum, New York City Health Board Backs Warning on Menu Items With High Salt, NYTimes.com (Sept. 9, 2015) http://www.nytimes.com/2015/09/10/nyregion/new-york-city-health-board-approves-sodium-warnings-on-menus.html?_r=0.
4Press Release, The Salt Institute, NYC Health Department Wrong on Sodium Warnings (Sept. 9, 2015) http://www.saltinstitute.org/press_releases/nyc-health-department-wrong-on-high-sodium-warnings/.
5Andrew Mente, et al., Association of Urinary Sodium and Potassium Excretion with Blood Pressure 371 New Engl. J. Med. 601 (2014) http://www.nejm.org/doi/full/10.1056/NEJMoa1311989.
6Nat’l Restaurant Assoc., NRA to Fight New York Sodium Mandate (Dec. 1, 2015) http://www.restaurant.org/News-Research/News/NRA-to-fight-New-York-sodium-mandate.
7Nat’l Restaurant Assoc., NRA sues NYC Over Sodium-Labeling Mandate (Dec. 4, 2015) http://www.restaurant.org/News-Research/News/NRA-sues-NYC-over-sodium-labeling-mandate.
8Michael M. Grynbaum, New York’s Ban on Big Sodas is Rejected by Final Court (June 26, 2014) http://www.nytimes.com/2014/06/27/nyregion/city-loses-final-appeal-on-limiting-sales-of-large-sodas.htmlA.