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Travel law: Challenging New York City’s restaurant salt warning rule

Travel law: Challenging New York City’s restaurant salt warning rule
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In this week’s article, we examine the case of National Restaurant Association v. New York City Department of Health & Mental Hygiene, 654024/15 Decision (2/10/2017)(N.Y.A.D. 1st Dept) in which the National Restaurant Association challenged the legality of a rule adopted by the New York City Board of Health (the Board) requiring “chain restaurants” “to post a salt shaker icon next to any food item or combination meal containing 2300 mg or more of salt, and the following language explaining the icon’s meaning: ‘the sodium (salt) content of this item is higher than the total daily recommended limit (2300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke’. The penalty for a violation of this section is a $200 fine, which became effective on March 1, 2016″. This case is discussed below.

Terror Targets Update

Paris, France

In Rubin, Breeden & Morenne, Paris Shootout Leaves Police Officer and Gunman Dead, nytimes.com (4/20/2017) it was noted that “A gunman wielding an assault rifle on Thursday night killed a police officer on the city’s most iconic boulevard, the Champs-Elysees, stirring France’s worst fears of a terrorist attack…The gunman was shot dead by the police as he tried to flee on foot; two other police officers and a bystander were wounded…The attack set off panic and a scramble for shelter, and officers began searching for possible accomplices after the attack”.

Afghanistan

In Mashal & Rahim, Taliban Attack Afghan Army Base, Killing Dozens, nytimes.com (4/21/2017) it was noted that “Dozens of soldiers were killed on Friday when Taliban gunmen and suicide bombers in military uniforms stormed an Afghan Army base in northern Afghanistan…The attack…began around 1 p.m. in a crowded area where soldiers, most of them unarmed, were leaving Friday Prayer or eating lunch”.

Fresno, California

In Haag, Gunmen, Thought to Be Targeting Whites, Kills 3 in Fresno, Police Say. nytimes.com(4/18/2017) it was noted that “When Kori Ali Muhammad, a homeless man who voiced a hatred of white people and the government, learned on Tuesday morning that he was wanted in the killing of a Motel 6 security guard in Fresno, Calif., he decided he was going to kill again, the police said. About 10:45 a.m., Mr. Muhammad walked up to a Pacific Gas & Electric utility truck and fatally shot a 34-year-old white employee in the passenger seat…Over the span of about a minute, Mr. Muhammad fired 16 bullets from a .357-caliber revolver over several blocks, killing three white men at random”.

Airline Employees, Behave Please

In Rosenberg, American Airlines Suspends Flight Attendant After Altercation Over Stroller, nytimes.com (4/22/2017) it was noted that “American Airlines suspended a flight attendant after an altercation on Friday in which the attendant took a stroller from a woman traveling with two young children and then argued with other passengers. The episode was captured, in part, on video…The attendant, whose name was not released by the airline, grabbed the stroller from the woman, who was carrying 15-month-old twins, a passenger who was nearby said. A video that circulated social media showed the attendant nearly coming to blows with another passenger who threatened him after the altercation with the woman”.

Sensitivity Training, Please

In Lieber, How Airline Workers Learn to Deal With You, nytimes.com (4/22/2017 it was noted that “To many travelers, these and other onboard incidents from just the past couple of weeks represent an airline industry out of control, with power-hungry personnel who bring down the hammer if they sense even a whiff of wrongdoing. People who work on the industry’s front lines, however, consider themselves first responders of the airport and the skies, awkwardly embracing the newfound expectation that they’re as responsible for passenger safety as those who pilot the jets. They do so, many say, without proper staffing or resources and amid managerial suspicion and passenger disrespect”.

Delta/Airtran Antitrust Case Dismissed

In Did Delta And AirTran Conspire To Charge First-Bag Fee?, eturbonews.com (10/5/2016) we discussed a class action lawsuit brought by passengers claiming that Delta and AirTran conspired to charge a first bag fee in violation of the price fixing provisions of U.S. anti-trust laws. This lawsuit has been resolved. See McDonald, Judge Clears Delta, AitrTran of Antitrust Violations, dailyreportonline.com (3/29/2017)(“After eight years of litigation, a federal judge in Atlanta…dismissed an antitrust case against Delta Air Lines and AirTran Airways that had accused the airlines of illegally price-fixing when they first imposed passenger baggage fees that are now standard for the flying public…U.S. District Judge Timothy Batten…decided there was insufficient evidence to undergird claims that airline executives had used multiple venues-including public quarterly earnings calls with security analysts, industry conferences, joint negotiation with Atlanta airport officials and an informal ‘grapevine’ to coordinate their introduction of the fees. ‘Even when viewed in the light most favorable to [the] plaintiffs, the evidence in this case simply does not permit a reasonable fact-finder to infer the existence of a conspiracy, as it does not tend to exclude the possibility that the alleged conspirators acted independently…There is no genuine issue for trial’. Batten dismissed the case against the two airlines after certifying a class of potential plaintiffs that included more than 28 million customers. During the litigation, Batten levied $7.6 million in fines and fees against Delta for having lost or destroyed electronic files in the critical months of 2008 leading up to the bag fee decision”.

No Pay Fee, No Fly

In Sablich, Those Pesky Airline Fees and How to Avoid Them, nytimes.com (3/27/2017) it was noted that “What’s a blanket on a cold airplane worth? Not $12, at least not for one passenger on a recent Hawaiian Airlines flight from Las Vegas to Hawaii. A 66-year-old-man was charged $12 for the blanket, but not with anything else, despite causing the flight to be diverted to Los Angeles. According to news reports, the passenger was deemed ‘unruly’ by airport police after saying he ‘would like to take someone behind the woodshed for this’ and was removed from the flight…George Hobica, the founder of Airfarewatchdog.com, said: “I think Hawaiian should have just given him the blanket for free. Doing that emergency landing cost Hawaiian thousands of dollars. This fee seems more silly than exorbitant”.

No Give Up Seat, Get A Broken Nose

In Smith, United Airlines Passenger May Need Surgery, Lawyer Says, nytimes.com (4/13/2017) it was noted that “a lawyer for the passenger dragged off a United flight on Sunday listed his client’s injuries: a broken nose, a concussion, two knocked-out teeth and sinus problems that may require reconstructive surgery”.

In Olen, United Airlines Is Not Alone, Op-Ed, nytimes.com (4/11/2017) it was noted that “United Airlines found itself at the center of social media controversy this week, after a horrifying video of a doctor being forcibly removed from a coach seat on one of its planes went viral. The man was, according to published reports, randomly selected to be bumped because the airline need to transport four employees on the sold out flight. The doctor refused to leave, airline officials called law enforcement, and security dragged him, bloodied, off the plane…The airlines are seemingly forever coming up with new and innovative ways to coddle an increasingly small group, while treating the majority of fliers with greater and greater contempt. United Airlines is all too typical. The airline recently debuted fold out beds for business travelers, complete with mood lighting, adjustable lumbar supports and bedding from Saks Fifth Avenue. But United’s coach class travelers are subjected to constant nickel and diming. Extra legroom is now an extra charge. So too, for travelers in the airline’s new ‘Basic Economy’ fare class, is the ability to choose one’s seat when booking a flight or the ability to bring more than one small, personal tote bag on the plane”.

Try Hyperloop Capsule Instead

In First full scale Passenger Hyperloop Capsule is being built, etn.travel (3/21/2017) it was noted that “Hyperloop Transportation Technologies (HTT) has begun construction of the world’s first scale Passenger Hyperloop Capsule. This first capsule is the culmination of over three years and thousands of hours of design, research and analysis. Construction is underway for delivery and an official reveal in early 2018 at HTT’s R&D center in Toulouse, France for integration and optimization. The capsule will then be utilized in a commercial system soon to be announced from the ongoing negotiations and feasibility studies currently taking place around the world”.

Uber’s Masculine Culture

In Isaac, Uber Releases Diversity Report and Repudiates Its ‘Hard-Charging Attitude’, nytimes.com (3/18/2017) it was noted that “After a string of scandals this year, Uber has rushed to repair its corporate culture. The ride-hailing company has started an internal investigation into workplace practices, issued apologies for some of its behavior, and has had several female executives and a board member speak up on its behalf. On Tuesday, Uber continued its mea culpa tour by releasing its first report detailing the composition of its work force, which depicted an overwhelmingly male employee base and showed that the largest ethnic group is white. In addition, the company forcefully repudiated its past, saying that its intense, masculine culture went too far. ‘Every strength, in excess, is a weakness’, Liane Hornsey, the recently appointed chief human resources officer, said…’What has driven Uber to immense success-its aggression, the hard-charging attitude-has toppled over. And it needs to be shaved back’”.

Titanic Wreck Tour, Anyone?

In $105 burning hole in your pocket? How about Titanic wreck dive tour?, etn.travel (3/22/2017) it was noted that “British luxury travel company Blue Marble Private has started selling expensive tickets to the wreck site of the legendary Titanic. The first ‘Dive the Titanic’ trip is scheduled for May 2018 at the cost of about $105,000 per person. Adjusted for inflation, the figure is equal to the price of an original Titanic first class ticket. The eight-day tour will start with a helicopter ride from the city of St. John’s in Newfoundland, Canada to a yacht anchored near the Titanic’s resting place… The voyagers will get a chance to reach depths of 4,000 meters in a specially designed titanium and carbon-fiber submersible, guided by a crew of experts…The dive will last three hours assisting the expedition team in the submersible and aboard the expedition yacht”.

The Waldorf-Astoria

In Hotel History: The Waldorf-Astoria Hotel, ent-travel (4/8/2017) it was noted that “On March 7, 2017, the Landmarks Preservation Commission (of New York City) voted to protect the interior Art Deco details of the Waldorf Astoria Hotel whose exterior is already landmarked. In 2015, China’s Anbang Insurance Group bought the Waldorf Astoria for nearly $2 billion from Hilton Worldwide Holdings, Inc. Anbang has just closed the hotel for a complete make over involving conversion of hundreds of guestrooms into privately-owned condominiums”.

Goodbye Permafrost

In a recent Travel Law article (4/5/2017) we said goodbye to Arctic Ice and the Great Barrier Reef, thanks to global warming. Now we bid adieu to the Permafrost as well. In Fountain, More Permafrost Than Thought May Be Lost as Planet Warms, nytimes.com (4/11/2017) it was noted that “As global warming thaws the permafrost, the frozen land that covers nearly six million square miles on the earth, a big question for scientists is: How much will be lost? The answer, according to a new analysis: more than many of them thought. A study published Tuesday in the journal Nature Climate Change suggests that the as the planet warms towards two degrees Celsius (3.6 degrees Fahrenheit) above preindustrial levels, each degree Celsius of warming will lead to the thawing of about 1.5 million square miles of permafrost. That figure is at least 20 percent higher than most previous studies”.

The Airline Experience, Not So Good

In Manjoo, How Technology Has Failed to Improve Your Airline Experience, nytimes.com (4/12/2017) it was noted that “There are many reasons for the sorry state of commercial aviation in America. When it comes to your routinely terrible flight–not to mention the sort of exceptional horror that took place aboard United Airlines Flight 3411 this past weekend- regulatory failures as well as consolidation, which the authorities have allowed to occur unabated for decades, can be blamed. But I come to you as a technology columnist to tell you that technology, too, has failed you. People in Silicon Valley pride themselves on their capacity to upend entrenched industries. Uber defeated taxi cartels. Airbnb made getting a room cheaper and more accessible. Streaming services are undoing the cable business. Yet the airline industry has not just stubbornly resisted innovation to improve customer service-in many ways, technology has only fueled the industry’s race to the bottom. Everything about United Flight 3411-overselling, underpaying for seats when they are oversold, a cultish refusal to offer immediate contrition, an overall attitude that brutish capitalism is the best that nonelite customers can expect from this fallen world-is baked into the airline industry’s business model. And that business model has been accelerated by tech. Travel search engines rank airlines based on price rather than friendliness or quality of service. Online checking (in), airport kiosks and apps allow airlines to serve customers with fewer and fewer workers. What we are witnessing is the basest, ugliest form of tech-glutted, bottom-seeking capitalism-one concerned with prices and profits above all else, with little regard for quality of service, for friendliness, or even for the dignity of customers”.

Travel Law Case Of The Week

In National Restaurant Association v. New York City Department of Health & Mental Hygiene the Court noted that “Salt is both an essential ingredient of our diet and, when consumed in excess, a significant health hazard. Excess consumption of sodium, the primary ingredient of salt, can cause high blood pressure, which in turn correlated with a higher risk of cardiovascular disease, congestive heart failure and kidney disease, according to the overwhelming consensus among scientists and the federal agencies charged with protecting the nation’s health. To address this issue, defendant New York City Board of Health (the Board) adopted a rule requiring certain restaurants to provide factual information to consumers on this issue. That rue is challenged in this appeal by the National Restaurant Association (NRA). We affirm the trial court’s rejection of that challenge, since the Board acted legally, constitutionally and well within its authority in adopting this limited yet salutary rule”.

The Board’s Mission

“The Board a division f defendant New York City Department of Health and Mental Hygiene (the Department) (and) is authorized to regulate all maters affecting health in the City of New York, including supervising the control of chronic disease and conditions hazardous to life and death… and supervising and regulating the food supply of the city and businesses affecting public health in the city and ensuring that such businesses are conducted in a manner consistent with the public interest…On June 23, 2015, the Department published in the City Record a notice stating its intents to adopt a rule ‘to require food service establishments to warm diners about menu items containing high amounts of sodium’…On July 29, 2015, the Board had received 94 written comments on the proposed rule, of which 90 supported it…On September 9, 2015…the Board adopted section 81.49 of the New York City Health Code (24 RCNY) entitled ‘Sodium Warning’”.

Factual Findings

“In its notice adopting the Rule, the Board made the following findings, all based on its own research or the comments received: cardiovascular disease is the leading cause of death in New York City; high blood pressure is a major actor for cardiovascular disease; the higher an individual’s sodium intake, the higher the individual’s blood pressure; the Federal Departments of Agriculture and Health and Human Services recommend that adults consume less that 2300 mg of sodium per day; the average daily consumption of sodium among New Yorkers exceeds 3200 mg; the vast majority of average dietary sodium intake is from processed and restaurant food; chain restaurants account for more than one-third of all restaurant traffic in New York City; a considerable number of individual or combination items on chain restaurant menus have more than 2300 mg of sodium; and consumers typically underestimate the sodium content of restaurant foods”.

The NRA’s Position

“The NRA is a business association representing 500,000 member restaurants. Its members include more than half of the Chain Restaurants in New York City that would be affected by the Rule. On December 3, 2015, NRA filed a combined article 78 and declaratory judgment petition challenging the Rule, arguing that it intrudes on the legislative function and thus violates the separation of powers; that it is arbitrary and capricious; that it is preempted by federal law; and that it violated the First Amendment rights of plaintiff’s members”.

Cost-Benefit Analysis

“All regulatory activity necessarily involves some degree lot cost-benefit analysis; the question is the extent to which the agency’s ‘value judgments entailed difficult and complex choices between broad policy goals-choices reserved to the legislative branch’. Adopting the Rule did not require the Board to make ‘value judgments’ ‘entail[ing] difficult and complex choices between broad policy goals’; rather, in this case, ‘the connection of the regulation with the preservation of health and safety is very direct, there is minimal interference with the personal autonomy of those whose health is being protected, and value judgments concerning the underlying ends are widely shared’…Notably, the Rule does not restrict or even regulated what Chain Restaurants may offer for sale.”

Not The Sugary Drinks Rule

“In contrast, in Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. Of Health & Mental Hygiene, 23 N.Y. 3d 681 (2014), which rejected the Board’s authority to enact the ‘Portion Cap Rule’ prohibiting certain food service establishments from selling sugary drinks in containers larger than 16 fluid ounces, the Court of Appeals that the Board had made ‘value judgments’ and, unlike here, restricted strictly what could be offered for sale”.

Like The Calorie Content Rule

“The fact that this uncomplicated rule is applied to some ut not all restaurants does not require a finding that the Board engaged in legislative policymaking, since the determination to apply the Rule to national fast food Chain Restaurants is grounded in promoting public safety. Indeed, the Rule applies to the same Chain Restaurants as the rule requiring the posting of the calorie content of menu items (Health Code 81.50), which account for more than one-third of all restaurant traffic in New York City. The Rule’s provision that only national Chain Restaurants that offer ‘substantially the same menu items’ at all franchises (Health Code 81.49(a)(2)) are required to comply makes effective administration of the Rule possible”.

Consensus On Reducing Salt Intake

“The Centers for Disease Control. American Heart Association (AHA), World Health Organization (WHO) and Academy of Nutrition and Dietetics (AND) all encourage reduction of sodium intake for good health. Other organizations recommend even lower daily limits, with the WHO recommending below 2000 mg per day and the AHA recommending no more than 1500 mg per day. In light of the consensus concerning the science behind the Rule, we reject plaintiff’s argument that the Rule does not advance the social benefit asserted”.

No Preemption

“Finally…the Rule is not preempted by federal law. The federal Nutrition Labeling and Education Act (NELA) was enacted in 1990 ‘to clarify and to strengthen the Food and Drug Administration’s legal authority to require nutrition labeling on food, and to establish the circumstances under which claims may be made about nutrients in foods’…Among other things, the NELA requires the nutritional information labeling found of most foods purchased in grocery stores…Plaintiffs’ claim that the NELA preempts the Rule is wrong for two reasons. First…Since the Rule at issue here constitutes a warning, it is expressly exempted from preemption. Second…states and localities ‘are not preempted from establishing, or put differently, are permitted to establish any requirement [for restaurants] for nutrition labeling of food that is not identical to the requirement of [21 USC] 343(q) (citing New York State Restaurant Association, 556 F. 3d at 12)”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here. http://www.nycourts.gov/courts/9jd/taxcertatd.shtml/

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