Just when you thought FDA menu labeling requirements were final and had preempted state and local laws, New York City’s (NYC) Board of Health approved on September 9 a new sodium warning label. The new law requires “covered establishments” (including restaurants with 15 or more locations nationally, doing business under the same name and offering substantially the same menu items), to display a salt shaker in a black triangle on menus and menu boards next to offerings containing 2,300 mg or more of sodium. The new requirement will become effective December 1, 2015, and will be enforced by NYC restaurant inspectors who can assess up to a $200 fine per violation.
The new symbol will look like this:
In addition to the symbol, the following statement must be posted conspicuously at the point of purchase:
“Warning: indicates that the sodium (salt) content of this item is higher than the total daily recommended limit (2,300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke.”
The warning requirement applies to any individual food that contains 2,300 mg or more of sodium “per discrete serving.” In the case of combination meals, the warning is required if any combination of food items in the combination meal contains 2,300 mg or more of sodium.
A full copy of the measure passed by the NYC Board of Health can be found here.
The NYC Department of Health and Mental Hygiene is working on a guidance document that will explain in detail how it intends to implement the new warning requirement. The Department encouraged OFW Law to submit questions to the Department from covered establishments. A Department official told OFW Law:
“The Department is currently working on guidance so your questions are instrumental to this process.”
In short, now is the time to send comments to the Department that may influence how the City’s official guidance document turns out.
Melissa Fleischut, president of the New York State Restaurant Association was quoted in the New York Times that the Association had no plans for a legal challenge, although it would prefer that NYC leave menu labeling up to FDA.
Because the NYC law is framed as a health warning, it is not subject to federal preemption under FDA’s menu labeling regulations. Under those regulations, state and local governments are preempted from enacting nutrition labeling requirements for restaurants and similar retail food establishments that are not identical to FDA’s menu labeling rule, which will go into effect on December 1, 2016.
This is not the first time NYC has taken the lead in attempting to address obesity and other diet-related disease by means of labeling or other requirements imposed on chain restaurants. NYC was the first jurisdiction to ban trans fats in restaurant foods and to require calorie labeling on menus and menu boards.
In both of those cases, the NYC measure was copied by other state and local governments around the country, and this new sodium warning may also have imitators. The NYC Health Commissioner Mary Bassett said she hopes other jurisdictions will follow NYC’s lead again.
Absent a successful legal challenge, chain restaurants around the country should brace themselves for this possibility. For those interested in exactly how public health activists can use local regulations to bypass federal law, see “Assessing the Impact of Federal and State Preemption in public Health: A Framework for Decision Makers”. The article, authored by leading activists, spells out their specific strategy for such actions and how they plan to use local regulations to continue to pressure the restaurant industry and the food industry as a whole.