Warning! High Salt Content

Written by Stephen Kenney

On Wednesday, September 9, 2015, the New York City Board of Health voted unanimously to require that chain eateries put a warning label on menu items that have more than the recommended daily limit of 2,300 milligrams of sodium.  That is the equivalent of about a teaspoon.   The high salt content items will have to be marked with a saltshaker encased in a black triangle.  

The regulation was published in the City Record on June 23, 2015.  The vendor is also required to post a warning that says: “Warning (picture of salt symbol) indicates that the sodium (salt) content of this item is higher than the total daily recommended limit (2300 mg).  High sodium intake can increase blood pressure and risk of heart disease and stroke.”   The warning must be posted at a point of purchase in the restaurant or in other words “any place where a customer may order food within an establishment.

The requirement is set to take effect on December 1.  Violators would be punished by a $200 fine which would be enforced by city health inspectors.  Restaurants along with some movie theaters and ballparks would be required to comply with the warning if the establishment 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.”

The Board of Health reasoned that this label was necessary because it believes that sodium is a major contributor to cardiovascular disease.  The notice of adoption of the regulations also cites studies that purport that 95% of Americans consume more than the recommended daily limit of sodium and that restaurant food is a primary source of sodium.  The New York Board of Health also referenced studies that argued that consumers typically underestimate the sodium content of restaurant food and foods that are often considered healthy, such as salads, often have high salt content. 

Court Enjoins Implementation of the New York City “Soda Ban”

On July 30, 2013, an appeals court for the state of New York affirmed a lower court’s ruling that the Sugary Drinks Portion Cap Rule, commonly known as the Soda Ban, is unconstitutional.

Mayor Bloomberg announced the Portion Cap Rule (“Rule”) on May 30, 2012 as a proposed amendment to Article 81 of the New York City Health Code to require food service establishments to cap at sixteen ounces the size of cups and containers used to offer, provide and sell sugary beverages. His stated purpose was to address the rising obesity rates in New York City. The Board of Health voted to adopt the Rule on September 13, 2012.

Plaintiffs brought suit in the Supreme Court on October 12, 2012 claiming that the Rule violated separation of powers as defined in Boreali v. Axelrod, Boreali v. Axelrod, 71 N.Y.2d 6, 9-14 (N.Y. 1987), and was arbitrary and capricious, and the Supreme Court agreed, declaring the regulation invalid. Coal. of Hispanic Chambers of Commerce v. Dep’t of Health, No. 653584/12, 2013 N.Y. Misc. LEXIS 1216 at *1 (N.Y. Sup. Ct. Mar. 11, 2013). On appeal, the court affirmed the Supreme Court’s ruling that the Rule violated the separation of powers doctrine of the State Constitution that establishes a boundary between the actions of the legislature and an administrative agency by failing the test set out in Boreali. It stated that the Rule “is one especially suited for legislative determination as it involves difficult social problems which must be resolved by making choices among competing ends.” The court enjoined the Board of Health from implementing and enforcing the Rule, but did not address whether the rule was arbitrary and capricious.

To read the court’s opinion, please see the New York Court’s website, at page 47.

Written by Sarah L. Doyle - Research Assistant
The Agricultural Law Resource and Reference Center
@PSUAgLawCenter
July 31, 2013