National Restaurant Ass'n v. New York City Department of Health & Mental Hygiene
148 A.D.3d 169
N.Y. App. Div.2017Background
- NYC Board of Health adopted §81.49 (the "Sodium Warning Rule") requiring chain food-service establishments (15+ locations with substantially the same menu) to display a salt-shaker icon and a warning for menu items or combination meals containing ≥2300 mg sodium; fines for violations.
- Board published a notice, held a public hearing (94 written comments, 90 in favor), and relied on findings: high sodium contributes to hypertension and cardiovascular risk; average NYC sodium intake >3200 mg; much dietary sodium comes from restaurant food; many chain-menu items exceed 2300 mg.
- National Restaurant Association (NRA) sued under Article 78 and for declaratory relief challenging the Rule as violating separation of powers, arbitrary and capricious, preempted by federal law, and violating the First Amendment.
- Trial court denied the petition; appeal to the Appellate Division, First Department, which affirmed the denial and upheld the Rule.
- Court emphasized the Rule is informational (compelled commercial speech), does not ban or restrict menu offerings, and is reasonably tailored to public-health and administrability concerns (targeting chain restaurants).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Separation of powers (agency vs. legislative policymaking) | NRA: Rule intrudes into legislative policymaking by making value judgments and creating policy on a broad social problem | Board: Rule provides consumer information, relies on public-health authority and precedents, and does not restrict offerings | Court: No intrusion — Boreali factors weigh for agency action; Rule is informational, limited, and health-based |
| First Amendment (compelled commercial speech) | NRA: Compelled warning is unconstitutional; Zauderer inapplicable | Board: Warning is factual, accurate, uncontroversial and advances consumer information; Zauderer governs such disclosure | Court: Applies Zauderer; warning is factual and permissible |
| Arbitrary and capricious / rational basis | NRA: Targeting only large chain restaurants is arbitrary; Rule may not achieve its goal (a la carte stacking) | Board: Targeting based on public-health impact and administrability; federal rules will require item sodium disclosure making aggregation possible | Court: Rule has rational basis; limited scope and administrability justify targeted application |
| Federal preemption (NLEA) | NRA: Federal nutrition-labeling law preempts local sodium-warning requirements | Board: NLEA exempts warnings about safety and exempts restaurant food from certain labeling preemption; local labeling permitted | Court: Not preempted — warnings exempted and restaurants are not covered identically by NLEA |
Key Cases Cited
- Boreali v. Axelrod, 71 N.Y.2d 1 (identifies factors for assessing agency/legislative boundary)
- Matter of NYC C.L.A.S.H., Inc. v. New York State Off. of Parks, Recreation & Historic Preserv., 27 N.Y.3d 174 (clarifies Boreali factors and flexible application)
- Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 23 N.Y.3d 681 (discusses limits on agency policymaking re: portion caps)
- Greater N.Y. Taxi Assn. v. New York City Taxi & Limousine Comm'n, 25 N.Y.3d 600 (Boreali factors are guidelines; deference to agency within bounds)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (permitting compelled commercial disclosures that are factual and uncontroversial)
- New York State Restaurant Assn. v. New York City Board of Health, 556 F.3d 114 (2d Cir.) (related precedent on calorie-posting rule, First Amendment and preemption analysis)
- New York State Assn. of Counties v. Axelrod, 78 N.Y.2d 158 (standard for judicial review of administrative rules as rational and not arbitrary)