Steak With A Side Of…Salt Warnings?

In September, 2015, the New York City Board of Health approved a new sodium warning measure. The law requires chain New York City restaurants with 15 or more locations nationwide to display a salt shaker symbol next to menu offerings that contain more than 2,300 mg of sodium. Shortly following the regulation’s announcement, the National Restaurant Association sued NYC, arguing that the law was arbitrary and capricious because the science regarding sodium’s health effects remains unsettled. On February 10, a New York appeals court allowed the rule to remain in force by affirming the trial court’s rejection of the National Restaurant Association’s arguments.

A stay was initially placed on the regulation shortly following its creation, preventing its enforcement until May, 2016. At that time, the Appellate Division of the New York State Supreme Court lifted the stay, and allowed enforcement of the rule throughout New York City. Health Commissioner Dr. Mary T. Bassett publicly applauded the decision, stating that the ruling “allows New Yorkers to make informed and better decisions about their diets and their health.” The Manhattan Appellate Division of the State Supreme Court then affirmed the 2016 decision in last month’s holding.

In the court’s opinion, Justice Ellen Gesmer pointed out the health risks of high-sodium foods and dishes: “Excess consumption of sodium, the primary ingredient of salt, can cause high blood pressure, which is in turn correlated with a higher risk of cardiovascular disease, congestive heart failure and kidney disease, according to the overwhelming consensus among scientists and the federal agencies charged with protecting the nation’s health.” Justice Gesmer continued by clarifying the reasoning behind the court’s decision, and pointing out that this mandate differed from other NYC dietary restrictions that came before it because it did not interfere with citizens’ personal autonomy when making individual food choices. Bloomberg’s big-soda ban, for example, entirely prohibited consumers from purchasing large sodas. The salt warnings, on the other hand, merely inform the consumer about the levels of salt rather then restricting them from purchasing such dishes altogether.

The mandate was opposed by the New York State Restaurant Association, an ardent advocate against governmental regulation of dietary information and regulation. The association fought a similar law in 2009. In that case, New York State Restaurant Association v. New York City Board of Health, the association asserted that a city law requiring chain restaurants with 15 or more locations nationwide to post calorie content information on menus and menu boards was both preempted by federal law and unconstitutional. Meeting a similar demise to the argument in the recent salt warning case, the NYC calorie warning regulation was upheld in the Second Circuit Court of Appeals on the grounds that the city law was reasonably related to its goal of reducing obesity.

The regulation (and the NY Court’s decision to uphold it) is increasingly relevant as local, state, and federal legislatures consider similar dietary warnings and regulations, and courts at all levels grapple with what constitutes an appropriate amount of government involvement (if any) in private citizens’ dietary decisions. What remains to be seen is how these and other regulations actually influence consumer decisions. American University Washington College of Law Professor Lindsay Wiley wrestles with these important questions in her 2014 research about the impact of product configuration bans. Wiley suggests that, despite the fact that such regulations are subject to a great deal of public discourse, their high visibility might lead to long-term decreases in portion size and increases in the availability of balanced meals. Despite such research, this field continues to be largely unchartered territory as the United States attempts to mitigate the nation’s growing obesity and health care epidemic.