Menu Labeling: New York’s Salt Disclosures Temporarily Stayed

A day before new sodium labeling regulations were set to take effect in New York City, a New York state appeals court granted a temporary stay, pausing the implementation and enforcement of the new requirements. Under the regulations, New York City restaurants with fifteen or more locations nationwide would have been required to post a salt-shaker symbol next to menu items that contain 2,300 milligrams (mg) or more of sodium (the daily recommended intake). Additionally, at the point of purchase, covered restaurants must conspicuously post the following warning: “Warning:  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 regulations were passed unanimously by the New York City Board of Health in September 2015, and were set to take effect on March 1, 2016. The National Restaurant Association sued the New York City Department of Health and Mental Hygiene in December to prevent the regulations from taking effect. On February 24, 2016, Judge Eileen Rakower refused the request, saying, “I believe information is power. This is not like the soda ban case. In this case we are providing information. Provide a different choice [of menu items] if you want to." The case was immediately appealed, and the New York state appeals court decision temporarily overrides Judge Rakower’s decision until a New York state appeals court decides whether to grant a preliminary injunction, which would pause the regulation until the case is evaluated on its merits. Among other claims, including one that the regulations are preempted under the Nutrition Labeling and Education Act, the National Restaurant Association alleges that the New York City regulation violates First Amendment rights by requiring disclosure of information with which the restaurants do not agree. The National Restaurant Association sees the forced menu changes as a form of compelled speech. As discussed in our recent blog about GMO-labeling, the status of compelled speech doctrine under the First Amendment is presently subject to significant unresolved litigation. Under the traditional standard, in order to compel commercial speech, the required disclosure must be factual and noncontroversial and must be intended to prevent consumer deception. Two cases out of the D.C. Circuit have interpreted that standard in different ways, thus making it more difficult to predict how this sodium-labeling case will turn out. Restaurants in New York City subject to this rule are also subject to the federal menu labeling regulations, which are set to take effect on December 1, 2016.