The National Restaurant Association (NRA) has petitioned a New York state court for a declaratory judgment stating that a New York City regulation requiring restaurants to post warnings on menu items high in sodium is arbitrary and capricious as applied. Nat’l Restaurant Assoc. v. New York City Dep’t of Health & Mental Hygiene, No. 654024/2015 (N.Y. Sup. Ct., filed December 3, 2015).

The complaint compares the regulation to the city’s 2012 attempt to prohibit sales of soft drinks in cups larger than 16 ounces, alleging that the New York City Board of Health is merely “looking to grab headlines as the purveyor of ‘first in the nation’ health initiatives, notwithstanding that, in truth, its sodium regulation is illogical, unlawful, and more likely to mislead consumers about sodium health than help them.”

NRA argues that the regulation, which took effect December 1, 2015, is “riddled with arbitrary exclusions and exemptions that are unrelated to the stated purpose of the rule,” because it only applies to food service establishments or vendors that have more than 15 locations nationally. The mandate also excludes unprepared foods sold at grocery stores, the complaint asserts, despite that “[t]wo-thirds of dietary sodium comes from grocery items, not from restaurants at all.”

The complaint also challenges the thresholds set forth in the statute, arguing that the limit of 2,300 reflects an “increasingly controversial view about sodium consumption” and distinguishes sodium from toxic substances that require warnings such as lead paint. Further, “[t]he Sodium Mandate provides that the Icon must appear next to any menu item, or combination offered, that contain 2,300 milligrams or more of sodium per discrete serving unit,” the complaint explains. “In addition, if any option on a menu item results in a combination meal with 2,300 mg of sodium or more, or if any possible version of a menu item contains 2,300 mg of sodium or more, the Icon must be used next to the item. These definitions and requirements result in a confusing use of the Icon and render the Sodium Mandate more misleading to consumers than helpful.” NRA also points out that using the same threshold for single menu items and entire meals can further confuse consumers.

“Once again, the board has acted without any legislative guidance and improperly sidestepped the people’s representatives on the City Council,” Angelo Amador, NRA’s regulatory counsel, said in a December 4, 2015, press release. “Its actions, as with the beverage ban before it, are arbitrary in their scope, reach and application.”