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Later this month, a judge will begin considering whether New York City’s requirement that chain restaurants post warnings on salty foods is a legitimate effort to protect public health or a regulatory overreach. On one side are public health officials including city health commissioner Dr. Mary Bassett, who say New Yorkers, particularly blacks and Latinos, are consuming too much sodium, leading to heart attacks and stroke and increasing health inequity in the city. They say the Board of Health has a broad mission to protect New Yorkers, and therefore needs to warn customers that certain menu items cross a line. On the other side is the National Restaurant Association, which believes the board, by deciding where that line is drawn, is acting in a role reserved for legislators and forcing restaurants to publish information they disagree with, thus infringing upon their First Amendment rights. The association’s brief calls the rule a “nonsensical scheme” from a “renegade board.” The city’s response is due Tuesday. Here’s where both sides agree: the stakes for the city’s health department and Board of Health have rarely been higher. If the board loses this case, which the judge will begin considering on Jan. 19, the activist role it has played in the city’s public health firmament for two centuries could be permanently diminished. And because the New York City health authorities have so regularly provided a model for action elsewhere, a setback here could reverberate around the country. “This is a rule where they are simply requiring restaurants to provide information to avoid a health risk,” said Tom Farley, who was health commissioner during the Bloomberg administration. “If they can’t even do that, then the courts have really limited the value of the Board of Health and put New Yorkers at risk.” And though the so-called “soda ban” case received far more press, this ruling has the potential to be more consequential for the board. “This would be a real blow, requiring them to go back to the drawing board,” said Preston Ricardo, a partner at Golenbock, Eiseman, Assor, Bell, Peskoe, who is representing the restaurants. “If it’s struck down, I don’t know where they go after this one. I think it’s kind of over for them.” The sodium regulation requires chain restaurants to post a symbol — a salt shaker inside a triangle — next to food items that contain more than 2,300 milligrams of sodium, which the federal government, in its 2010 dietary guidelines, says is the recommended daily limit. (The limit is lower for people 51 and older, African-Americans of any age and people who have high blood pressure, diabetes, or chronic kidney disease — about half the U.S. population and the majority of adults.) A warning that “[h]igh sodium intake can increase blood pressure and risk of heart disease and stroke” must also be posted. The city’s health department, expecting legal pushback, took pains to point out that the sodium regulations are a warning, no different than calorie counts on menus, and that the sodium rules do not prohibit any purchase. Health department officials emphasize this point because of a 2014 ruling from the New York State Court of Appeals that overturned the Board of Health’s controversial portion cap rule, known as the “soda ban.” The measure sought to limit the size of sugary drinks, but a majority of the judges felt the board had assumed powers delegated for the legislature. Since that time, the board has been careful not to take on any topic that could be considered the purview of the City Council. Reflecting this new outlook, an uncontroversial regulation making it easier for transgender New Yorkers to amend their birth certificates was timed to coincide with the City Council passing the same law. Likewise, in crafting the sodium rules, the Board of Health attempted to follow the guidelines laid out in the “soda ban” case. But according to Ricardo, the restaurant industry lawyer, they were “too clever by half.” “They have couched it with qualifying language, but the clear message — when you put a warning in front of it and isolate the nutrient — it is clear this message is designed to steer people away from certain foods,” Ricardo said. If the board were to lose, particularly if a judge finds the matter should have been handled by the City Council, its members will be hard-pressed to find another way to steer New Yorkers clear of the items public health officials believe do us the most harm: sugar, salt and fat. Wilfredo Lopez, who was general counsel to the board when it passed the portion cap rule, said an adverse ruling would “hinder the board’s ability to react in response to public health threats.” He pointed to what happened to the state’s public health and health planning counsel after the Court of Appeals ruled the board overstepped its bounds when trying to prohibit smoking in some indoor areas. The 1987 case, Boreali v. Axelrod, led to a generation of precedent and rendered the state board ineffectual, Lopez said. “If you look at state public health council since Boreali, there is no innovation there at all,” Lopez said. “It stymied the authority of the public health council to react to current-day problems.” Boreali also stymied the city’s efforts to regulate sugar-sweetened beverages. And Boreali is at the heart of the restaurant association’s case against the sodium warnings. In Boreali, the courts laid out a four-pronged test to determine the difference between administrative rulemaking, which is allowed, and policy making, making which is not. The “soda ban” did not pass the test, and neither should the sodium rules, the National Restaurant Association says, because the Board of Health isn’t so much regulating an existing law as creating a new one. “In its zeal to make New York City the first in the nation to require sodium warnings to be placed on menus and to isolate sodium as the nutritional culprit deserving of that special ignominy, the Board has once again acted without any legislative guidance and in disregard of multiple recent legislative efforts to address sodium; and has dived head first into a controversial and evolving scientific fray to adopt a regulation with as many or more legal flaws as the Soda Ban,” the Association’s brief said.
