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NYC Sodium Warning Rule Upheld

By Jeshica Patel posted 02-16-2017 02:55 PM

  

During a time where risk of heart disease, high blood pressure, and stroke is still prevalent, New York City Board of Health has passed a rule that requires chain restaurants to post warning labels next to menu items that contain high levels of sodium.[1] The rule was passed on Sept. 9, 2015, and requires restaurant chains of 15 of more locations to post warning labels.[2]

In late 2015 the National Restaurant Association filed an Article 78 proceeding against the Board of Health, claiming that rule was arbitrary and capricious, violates the First Amendment, and was preempted by federal law.[3] In a previous NY Court of Appeals case, the court outlined four factors “which, taken together, may indicate that an agency has usurped legislative authority.”[4] The factors are

(1) whether the agency engaged in impermissible policy-making; (2) whether the agency adopted the regulation without the benefit of legislative guidance on a "clean slate"; (3) whether the agency acted in an area of legislative debate and inaction; and (4) whether the agency relied on its special expertise in developing the regulation.[5]

            The trial court in this case rejected the Article 78 challenge, and after analyzing all four factors, the appellate division found that the board “did not act outside the bounds of its authority in the area of public health by adopting a rule requiring chain restaurants to post sodium warning labels.”[6] Ultimately the court concluded that

(1) the Board properly exercised its broad authority in the area of public health by adopting Section 81.49; (2) Section 81.49 is not invalid as arbitrary and capricious; (3) Section 81.49 does not violate the First Amendment rights of Petitioners' members because it reasonably requires disclosure of factual information in a purely commercial context; and ( 4) Section 81.49 is not preempted by federal law because it requires a "warning" statement and thus falls within a valid exception to the express preemption provisions of the NLEA.

 

For more information on the sodium warning rule:

https://www1.nyc.gov/site/doh/health/health-topics/national-salt-reduction-initiative.page

[1] NYC DOH, Sodium Initiatives (Feb. 16, 2017) https://www1.nyc.gov/site/doh/health/health-topics/national-salt-reduction-initiative.page#sodium-warning-labels-chain-restaurants.

[2] Id.

[3]  Nat’l Rest. Ass’n v. The New York City Dep’t of Health and Mental Hygiene et al., No. 654024/2015 (App. Div. 1st Dep’t 2017).

[4] Boreali v. Axelrod, 71 N.Y.2d 1, 11 (1987).

[5] Id.

[6] Nat’l Rest. Ass’n, at 5.

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