New York City's new sodium warning law received its first official challenge this month. On December 3, 2015, the National Restaurant Association (NRA) filed suit against the New York City Department of Health & Mental Hygiene, the New York City Board of Health and Dr. Mary Travis Bassett, Commissioner of the New York City Department of Health & Mental Hygiene, in the New York Supreme Court in New York County.

The "Sodium Mandate" went into effect December 1, 2015, with penalties expected to go into effect March 1, 2016. Pursuant to the mandate, certain defined Food Service Establishments in New York City must post a symbol of a salt shaker next to menu listings for food items containing 2,300 milligrams or more of sodium. The law applies to Food Service Establishments with 15 or more U.S. locations that provide "individual portion service directly to the consumer..." According to the NYC Board of Health, the mandate is intended to "captur[e] leading fast-food and fast-casual restaurants which can easily make sodium information available." The law also requires menu warnings that "high sodium intake can increase blood pressure and risk of heart disease and stroke."

This lawsuit alleges that rather than focusing on consumer health, the NYC Board of Health raced to be the first in the nation to institute such a law and urges that the city defer to the new federal menu-labeling laws going into effect in 2016. The NRA supports these new menu-labeling laws requiring disclosure of information about multiple nutrients—including sodium. The federal menu-labeling laws garnered industry support in the wake of multiple local and state regulations attempting to regulate the same issues. Because the industry wanted to avoid a patchwork regulatory scheme, after much debate, the NRA decided to support the federal laws.

The NRA equates New York City's Sodium Mandate to the 2012 "Soda Ban" and characterizes both as arbitrary in scope, reach and application. The association identified several shortcomings of the regulation, including the allegation that it requires "just enough inaccurate and controversial information about sodium in certain food items to cause far-reaching negative consequences rather than help consumers and reduce public health risks."

NRA seeks a declaration that the Sodium Mandate:

  • Violates settled principles of separation of powers;
  • Is arbitrary and capricious based on its illogical application to only some food vendors and not others, and to only some menu items but not others;
  • Violates NRA members' First Amendment rights; and
  • Constitutes a "health claim" and/or a "nutrition content claim," and is therefore preempted by federal law.

On March 23, 2010, the Affordable Care Act (ACA) directed the FDA to issue menu-labeling rules expressly preempting state and local food menu-labeling requirements for chain retail food establishments with 20 or more locations. While the ACA does not prevent states from enacting labeling requirements for establishments with fewer than 20 locations, it allows non-covered establishments, such as certain schools, hospitals, transportation carriers and movie theaters, to opt in to avoid state or local requirements.

The industry will closely monitor this suit. If states and localities are free to regulate nutrient content disclosures, restaurant regulatory compliance gains an additional layer of complexity. Further, challenges to such requirements in multiple venues and forums, e.g. state court versus administrative proceedings, could result in inconsistent results. Ultimately, Congress may need to settle the issue legislatively by explicitly mandating that states and localities may not issue regulations in this area due to federal preemption.

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