GEAB&P Represents the National Restaurant Association in Constitutional Challenge to Required Posting of Sodium “Warnings” in NYC Restaurants

A litigation team comprised of S. Preston RicardoJacqueline VeitDavid EisemanElizabeth Conway, and Alexander Parachini is representing the National Restaurant Association in a lawsuit in New York Supreme Court to enjoin and invalidate a  first-of-its-kind, onerous regulation requiring the New York City locations of certain chain restaurants to post sodium “warnings” on menus.

The New York City Board of Health adopted the unprecedented sodium regulation effective December 1, 2015, and enforcement will begin on March 1, 2016.

GEAB&P is challenging the sodium regulation on four grounds.

  • The Board of Health exceeded its rule-making authority and violated the separation of powers.
  • It is impermissibly arbitrary and capricious, because it arbitrarily applies to only 11% of food retailers selling foods containing 2,300mg or more of sodium, and irrationally requires the “warning” to be applied in covered establishments to certain food items and not others, leaving consumers confused and potentially misled rather than empowered to make healthier food choices, and thus is so under-inclusive as to gut the asserted purpose of the sodium regulation.
  • It violates the First Amendment rights of covered restaurants by compelling them to voice the government’s content-based opinion about a controversial scientific issue with which many restaurants disagree.
  • It is preempted by federal menu labeling laws.

Argument is scheduled for February 11, 2016.

You can read more about this case in these Bloomberg and Politico New York articles.