NY State Supreme Court Upholds New York City’s Sodium Warning Rule

NY State Supreme Court Upholds New York City’s Sodium Warning Rule

Summary

On February 10, 2017, the New York State Supreme Court, Appellate Division (the court), upheld New York City’s (the City) sodium warning rule (the Rule). The Rule requires covered establishments (i.e., chain food service establishments) to: (1) show which of their food items have more than the recommended limit of sodium (i.e., salt) per day (2,300 mg) by placing a warning icon next to those items on menus, menu boards, and item tags; and (2) post a sodium warning statement where customers place their orders which explains that items with the icon have more than the recommended limit of sodium per day and that having too much sodium is a health risk.

The Rule defines “covered establishment” as a food service establishment permitted by the City’s Department of Health and Mental Hygiene (Health Department or the Department) that is part of a chain with 15 or more locations doing business under the same name and offering for sale substantially the same menu items. Although the Rule does not address specifically whether or not all such locations must be in the City in order to be subject to the labeling requirements, the Health Department’s guidance on the Rule makes it clear that the Department considers locations within and outside of the City to count equally toward the Rule’s location threshold, as long as there is at least one location in the City. In other words, the Rule’s 15 location threshold could be met if an establishment has one location in New York City and 14 locations elsewhere in the United States, presuming all such locations operate under the same name and offer for sale substantially the same menu items.

The Rule went into effect on December 1, 2015, but the City Health Department did not start levying fines for violations until June 2016, in part because of the then-pending legal challenge to the labeling requirements. Petitioner, the National Restaurant Association (NRA), argued, among other things, that the Rule violates the First Amendment rights of its members and is preempted by the federal Nutrition Labeling and Education Act (NLEA). The court was not persuaded by NRA’s arguments, finding that the Board “acted legally, constitutionally and well within its authority.”

Around the same time the City Health Department started levying $200 fines for Rule violations, the U.S. Food and Drug Administration (FDA or the Agency) announced draft voluntary sodium reduction targets. The Department has indicated that, to date, it has cited over 300 restaurants for violations, which represent a little less than 10 percent of the approximately 3,300 restaurants in the City that are covered by the Rule.

In addition to complying with the City’s sodium warning rule, covered establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items will soon have to provide calorie and other nutrition information, pursuant to FDA’s menu labeling rule, which kicks in on May 5, 2017.

A note on the future of FDA’s menu labeling rule: during the presidential campaign, now President Donald Trump indicated repeatedly that, if elected, he would repeal and replace the Affordable Care Act (ACA), from which FDA’s menu labeling rule is derived. It remains to be seen whether or not: (1) such a repeal effort will be undertaken; (2) the repeal effort (if any) will be successful; and (3) the menu labeling provision will be affected by the repeal effort (if any). For the time being, however, FDA plans to move forward with enforcement of its rule this May. The NRA supports FDA’s rule so its members can avoid complying with a patchwork of state and local menu labeling requirements. It is unclear whether such support will be enough to carry FDA’s rule through ACA repeal, and what effect, if any, President Trump’s “one in, two out” executive order on federal regulations will have on the Agency’s menu labeling rule. We are continuing to monitor developments in this area and will issue further updates, as warranted.

If you have any questions regarding an issue raised in this alert, or if you have questions regarding compliance with the Rule or with federal menu labeling requirements, please contact one of the authors or the attorney at the firm with whom you are regularly in contact.

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