- Restaurant group's lawyer calls the Board of Health `renegade'
- Heart disease is the leading cause of death in the city
New York City was sued over a rule requiring restaurants to post warnings on food high in salt, opening a new front in its fight to protect public health by trying to change people’s eating habits.
The National Restaurant Association, a Washington-based group that represents more than 500,000 businesses, said it filed the suit Thursday in state court in Manhattan. The trade group is seeking to stop the city’s rule from being implemented on the grounds that the Board of Health overstepped its authority and was "arbitrary and capricious" in enacting the requirement, said Preston Ricardo, an attorney representing the group.
The new rule, crafted by Mayor Bill de Blasio’s administration, requires all restaurants with 15 or more locations nationwide to highlight menu items with at least 2,300 milligrams of sodium -- the equivalent of a teaspoon and the recommended daily limit for adults - and label them with a warning sign (a salt shaker inside a triangle).
It continues the efforts of Mayor Michael Bloomberg to improve public health, such as banning trans fats, requiring menus to include the calorie count of dishes and limiting the size of sugary sodas. That last measure was eventually blocked by the state’s highest court, which ruled that the city’s Board of Health had overstepped its authority. The trans fats ban and the calorie counts survived court challenges.
The filing of the suit couldn’t be independently verified in court records. The city hasn’t been served with the suit, said Nick Paolucci, a spokesman for the Law Department. Paolucci said the city is "confident that the Board of Health has the authority to enact this rule."
The restaurant group is also claiming that the rule violates the First Amendment by forcing its members to voice an opinion many don’t agree with, and that it is pre-empted by federal law, Ricardo said.
"Once again we have an example of renegade regulating by the Board of Health in their effort to be trailblazers and grab headlines," he said.
The salt warning is likely to survive the latter claims, as the government has the authority to require commercial entities to disclose factual information about products for sale, said Jennifer Pomeranz, a clinical assistant professor at New York University’s College of Global Public Health.
"We have a plethora of warning labels on things, everything from toxic substances to tobacco, and now we’re moving towards having warning labels on foods," Pomeranz said.
The argument that the board overstepped its authority might prove stronger, Pomeranz said, but the trade group still will probably lose. "It might just be a longer battle," she said.
Whatever the outcome, the rule may well inspire other municipalities to address sodium levels in restaurant food, Pomeranz said. While the ban on large sodas failed, both California and New York are considering bills that would require certain beverages to include a warning that sugar contributes to obesity and other health problems.
"New York City’s been a nation-leader" in its health efforts, she said, and "I do think that this would influence other jurisdictions to pass a similar measure."
The salt rule took effect Dec. 1. The city’s Health Department won’t start citing violators until March, when restaurants may be subject to a $200 fine if they don’t comply. The restaurant group is asking the court for a preliminary injunction blocking the rule from going into effect before the fines kick in, Ricardo said.
The Health Department said the rule is necessary because excessive sodium intake can lead to high blood pressure and increase the risks of stroke and heart disease, which is the leading cause of death in the city. Eighty percent of adults in New York consume more than the daily recommended amount of sodium, and many don’t realize it can endanger their health, the agency said. Mayor Bloomberg, the founder and majority owner of Bloomberg LP, the parent company of Bloomberg News, had asked restaurants and food producers to voluntarily reduce the amount of salt in their fare.
The restaurant association has said it wants a uniform standard for menus that would provide customers throughout the country with the same information. The group said the industry is committed to developing lower-sodium options without mandates like New York’s.
Chains that have 15 or more locations account for about a third of the city’s restaurant traffic. Burger joints, sandwich shops and certain full-service restaurants are the likeliest to have items that exceed the limit, the Health Department said, citing the city’s MenuStat website.
Some chains have beaten the city to the punch. Burger King removed the biscuit from its Ultimate Breakfast Platter in its New York City locations, taking the platter’s sodium content from 2,380 to 1,680 milligrams. The chain said its New York City restaurants no longer have any items that cross the rule’s threshold. Panera Bread said it cut the amount of salt in three of its menu items in New York to avoid having to warn customers about the sodium content. That included the Bacon Turkey Bravo sandwich, which the Center for Science in the Public Interest had listed in September among the fast-food menu items with more than 2,300 milligrams of sodium.
Others have some labeling to do. Among Denny’s high-sodium menu items are its Meat Lover’s Omelette and its Lumberjack Slam and Peanut-Butter Cup Pancake breakfasts. Subway has multiple items that break the sodium barrier. Tex-Mex casual-dining chain Chili’s Grill & Bar, owned by Brinker International Inc., sells burgers, Cajun pasta, nachos, fried pickles, salads and chicken quesadillas that require the warning. Quiznos said it has been working for several years to reformulate its recipes in New York City and has reduced sodium levels in the Ultimate Turkey Club, Honey Bacon Club, Spicy Monterey and the Baja, but still has two items over the limit.
The restaurant group said the rule undermines efforts to establish a nationwide standard and adds costs to eateries already dealing with Governor Andrew Cuomo’s efforts to implement a $15 minimum wage for fast food workers.
In addition, it pointed to new federal regulations that will take effect next year as part of the Affordable Care Act, requiring chains with 20 or more locations to provide calorie counts and other nutritional information, including sodium levels. It said the federal rules make New York’s sodium warnings unnecessary.