Chains Sneeze at NYC Salt-Content Rules

     MANHATTAN (CN) – Like the failed ban on large sodas before it, New York City faces a lawsuit from the restaurant chain it wants to disclose salt amounts on their menus.
     In force since Dec. 1, the new regulation from the city’s Department of Health & Mental Hygiene requires chain restaurants to put a salt-shaker cartoon alongside items on their menus containing more than 2,300 mg of sodium. The menus would also have to include a “warning” that such foods “can increase blood pressure and risk of heart disease and stroke.”
     Violators face $200 fines for noncompliance when penalties take effect in March.
     But the National Restaurant Association claims in a Dec. 3 lawsuit that the city rules fail to align with an upcoming law passed by Congress that will do the same thing.
     With the federal Nutrition Labeling and Education Act set to take effect in December 2016, it would have made sense for New York City to delay enforcement of its rules by a year, the restaurants say.
     Instead the salt regulations went from a June 2015 proposal by Mayor Bill de Blasio to a September vote by the city’s health board, with an effective date just 11 weeks later.
     The restaurant group says it is “fully supportive of the federal law,” and points out that “its members have been working for months in preparation for compliance.”
     But the city’s health department is grandstanding, simply “looking to grab headlines” and make NYC look like it’s the “purveyor of ‘first in the nation’ health initiatives,” the lawsuit filed in Manhattan Supreme Court states.
     Meanwhile, in truth, New York City’s “sodium regulation is illogical, unlawful and more likely to mislead consumers about sodium health than help them,” the 46-page lawsuit states.
     “The regulation, like the soda ban before it, is completely arbitrary in its scope, reach and application,” the complaint states. “And this time the board’s action is worse.”
     De Blasio’s predecessor, Mayor Michael Bloomberg, made headlines when he championed a failed bid to put a lid on the size of sugary drinks sold in the city in March 2013. The state’s highest court tossed the rule in June 2014.
     Representing 1 million restaurants across the country with more than 14 million employees, the National Restaurant Association says that NYC’s sodium regulation is similarly misguided because it only targets restaurant chains with more than 15 locations, leaving other vendors like food trucks, independent restaurants, delis, grocery stores and convenience stores out of reach.
     The federal law meanwhile targets restaurants with at least 20 locations.
     Calling New York City’s law an example of “renegade regulating at its worst,” the group enumerates “a startling number of legal deficiencies” within the statute.
     When Congress passed the federal law, it “expressly” included rules banning local governments from enacting menu labeling mandates that don’t adhere to their rules, the lawsuit states.
     New York City lawmakers failed to take heed of that guidance, however, “in their fervor to break new ground, and unable to devise a logical means of advising consumers about sodium intake in a way that was not preempted by federal law.”
     The complaint says de Blasio’s law “written in convoluted ways to try to dodge new wide-ranging federal legislation which will require certain restaurants to provide their customers with broad-based nutritional information about restaurant food (including sodium content), while at the same time trying to avoid all of the pitfalls of the soda ban.” (Parentheses in original.)
     “The result is a completely irrational law that does not accomplish its goal of enabling consumers to make wise choices with respect to sodium, and at the same time, may put some consumers in harm’s way,” the complaint states. “In the process, the sodium mandate harms some businesses and benefits others with no rational reason to do so.”
     With the Academy of Nutrition and Dietetics pushing for revisions of the federal guidelines, the National Restaurant Association note that many of its members disagree with the science behind New York City’s ban.
     The group also notes that the New England Journal of Medicine, the Institute of Medicine and other journals have all published studies in recent years that undermine the U.S. government’s determination that consuming more than 2,300 mg of salt is unhealthy.
     “Many individuals routinely consume far more than 2,300 milligrams of sodium daily on average with absolutely no adverse health risk whatsoever,” the lawsuit states.
     It is furthermore of note that “the sodium mandate does not directly and materially advance [the city’s] interest in reducing cardiovascular disease,” according to the complaint.
     The organization wants an injunction by February, saying franchisees and other restaurants could lose “customer goodwill” and reputational harm.
     “The arbitrary nature of the sodium mandate will not only create uncertainty among covered members’ customers, it will also interject an element of unjustified fear, which will have the combined effect of discouraging consumers from purchasing the covered members’ products and driving people to patronize the more than 80 percent of restaurants that are not covered” by the requirement, the lawsuit states.
     The food union spoke out against New York City’s sodium rules at the health board hearing in July, to no avail.
     Even the city’s public advocate Letitia James chimed in, saying: “We have seen this happen before with the failed soda ban. The intention to improve health of New Yorkers is good. But the process is wrong. There is no reason not to send this through the elected City Council.”
     The National Restaurant Association notes that no city or state law has ever prescribed any policy about the approach to reducing dietary salt intake.
     In fact, repeated ideas to regulate sodium intake have failed in both the New York Legislature and in the city council, the lawsuit states.
     “The sodium mandate is an ill-conceived attempt to regulate public health based on a misunderstanding (and misuse)” of the federal guidelines, the lawsuit states.
     Specifically unjust to the National Restaurant Association is that chains face a dreaded salt shaker for menu items like spicy oriental chicken salads and burritos, when consumers can buy the same items at the deli down the block, and probably do so by the pound.
     “Such a scheme will make no sense to consumers, because it does not make any sense,” the lawsuit says.
     The lawsuit also notes that most of the fare at a mom-and-pop Asian restaurant exceeds the 2,300 mg limit, thanks to the use of soy sauce, monosodium glutamate and other high-sodium ingredients.
     “Yet, few of those restaurants will be subject to the sodium mandate,” the complaint states.
     Claiming violation of the First Amendment, the restaurants say New York City is forcing chains “to parrot respondents’ opinion on the health effects of ingesting certain levels of sodium – an opinion not shared by many owners and operators.” (Emphasis in original.)
     A New York Law department spokesman defended the lawsuit Tuesday.
     “We are confident that the Board of Health has the authority to enact this rule,” he said. “We’ll review the suit.”
     The restaurant group is represented by S. Preston Ricardo with Golenbock Eisman Assor Bell & Peskoe in Manhattan.

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