Sodium warning label. Image Credit:
In the twentieth century, primary causes of death and disability in America changed from communicable diseases to chronic diseases. This shift was in part due to the successes of public health as better sanitary conditions and immunizations reduced the burden of communicable diseases. The shift, however, was also due to changes in lifestyle and longer life expectancies that caused the rates of chronic diseases to increase.
By 1950, heart disease and cancer were firmly established as the nation’s leading causes of death and they remain so today. Diabetes, respiratory disease and stroke also rank among the nation’s top ten leading causes of death. Half of American adults report having at least one chronic disease, and about a third of all health spending is related to treating chronic diseases.
Public health practitioners have as a result focused on public health policies that affect changes in individual behaviors. New York City has been at the forefront of this new focus, passing laws intended to reduce the disease burdens of tobacco and the foods we eat. Policies aimed at reducing the burden of chronic diseases by changing individual behavior proved less popular and more controversial than prior public health efforts.
Bringing down smoking rates
Prior to the first Surgeon General’s report in 1964, adult smoking rates in the United States were above forty percent. Smokers could smoke almost anywhere and a non-smoker could expect to work in an office, dine in a restaurant and ride on a plane that were filled with smoke because of societal norms. Following the Surgeon General’s report, Congress passed the Federal Cigarette Labeling and Advertising Act which required warnings on cigarette packages. This federal legislation preempted states and localities from imposing additional requirements related to the advertising or promotion of cigarettes that concerned their safety. States and localities, however, could regulate the sale of tobacco and places where smoking was allowed.
Smoking bans, premised on protecting others in the public from second-hand smoke, were fiercely opposed. Although New York State in 1975 banned smoking in some places like movie theatres, numerous legislative attempts to expand the list of places where smoking was not permitted failed. In the wake of these legislative failures, the State Public Health Council tried to regulate smoking in 1986. These regulations were declared invalid in Boreali v. Axelrod, 71 N.Y. 1 (1987). State legislation subsequently passed in 1989 expanded the list of public places where smoking was prohibited and required restaurants to have nonsmoking sections.
New York City amended the Smoke Free Air Act – its local anti-smoking law – in 1995 to prohibit smoking in the dining areas of restaurants able to seat 35 or more people. Seven years later, in 2002, New York City further extended the smoking prohibition to smaller dining areas and to bars and the bar areas of the vast majority of the City’s restaurants. While not the first jurisdiction to outright ban smoking in bars and restaurants, New York City was certainly the most noteworthy. Critics predicted the demise of the City’s entertainment and tourism industries because of the ban, but the prohibitions proved to be generally popular after they were enacted. People continued to patronize bars and restaurants. A societal change had occurred; the deferential “right” of smokers to smoke anywhere disappeared. As smokers exited to the streets, the rest of New Yorkers came to expect to socialize in smoke-free bars and restaurants. Similar bans were passed more easily in numerous other jurisdictions – including New York State in 2003 – and with virtually no opposition the City subsequently amended the Smoke Free Air Act to include parks, beaches and sports arenas. Many property owners have voluntarily banned smoking near their entrances to move smokers further away from their buildings.
Price is perhaps the most effective way to reduce smoking, especially among the youth. Higher taxes increase the cost of cigarettes, which encourages smokers to quit and discourages non-smokers from starting. New York’s taxes in 2019 are among the highest in the nation; the State collects $4.35 and the City an additional $1.35 on each pack of cigarettes sold.
While any increase in cigarette taxes must be passed by the State, price floors can be enacted locally. In 2013, New York City enacted its first minimum price requirements for cigarettes and little cigars, and banned tobacco retailers from accepting discount coupons that would bring their prices below these floors. The tobacco industry unsuccessfully challenged the discount ban claiming both that it violated the First Amendment and was preempted by the Federal Cigarette Labeling and Advertising Act. In National Association of Tobacco Outlets, Inc. v. City of New York, 27 F. Supp.3d 415 (S.D.N.Y. 2014), Judge Thomas Griesa, following a First Circuit decision upholding a similar ban in Providence, Rhode Island, upheld the City’s discount ban as a permissible regulation of economic transactions.
The City also regulated what types of tobacco products can be sold by retailers and to whom they may be sold. Worried that youth were being enticed to try other types of tobacco products with flavors like blueberry and bubble gum, New York City in 2009 banned retailers, other than a handful of cigar bars, from selling flavored tobacco products. A tobacco company sued, claiming the law was preempted by federal law because it regulated flavor and was, thus, a “product standard.” In U. S. Smokeless Tobacco Manufacturing Company, LLC v. City of New York, 708 F.3d 428 (2d Cir. 2013), the Second Circuit held that the City had the right to prohibit sales within the City of specific categories of tobacco products from being sold within them.
The City, citing evidence that people are more likely to become addicted to cigarettes the younger they are when they start smoking, also raised the legal age to purchase tobacco products from 18 to 21 in 2013. Five states have subsequently raised the minimum ages of purchase to 21, and Governor Andrew Cuomo recently announced that he will include a statewide proposal to raise the minimum age to purchase tobacco to 21 in the 2019 Executive Budget.
The City’s most recent tobacco laws were passed in 2017. They included a law that, in addition to setting price floors for other categories of tobacco products, raised the minimum price of a pack of cigarettes from $10.95 to $13, making the City’s pack price once again the highest in the nation. City laws also reduced the number of places where people can buy cigarettes. As of January 1, 2019, pharmacies in New York City may no longer sell tobacco products or e-cigarettes. The total number of retailers in the City will go down dramatically over time as the number of retailers that can sell cigarettes in each of the city’s community districts has been capped.
Perhaps most significantly, the City’s recent laws have addressed e-cigarettes and vaping. E-cigarettes deliver nicotine in an aerosol created by a heat source and are now a $2 billion-a-year business in which the tobacco industry has invested heavily. Altria, for example, the parent company of Philip Morris USA and other tobacco companies, sells Marlboro, the most popular brand of cigarettes sold in the United States. Altria now also owns more than a third of the stock in JUUL, the current most popular vaping brand. Vaping ads look very much like tobacco ads once did, and they deliver the addictive component of cigarettes causing concern that they are a gateway habit. Places that sell e-cigarettes now must be licensed and vaping may not occur wherever smoking is prohibited by the Smoke Free Air Act. The City Council currently is considering a bill that will amend the City’s flavored tobacco ban to cover e-cigarettes as well.
These laws are in addition to the City’s counter-advertising campaigns against tobacco led by the City’s Department of Health. These hard hitting anti-tobacco campaigns, along with the cessation services the City provides, encourage smokers to quit. As a result of all of these efforts, the City’s smoking rates are decreasing and are among the lowest in the nation. In 2017, only 13.4 percent of residents smoked, compared to 21.5 percent in 2002, and the rate among youth was down to 5 percent.
Making our food healthier
Currently, one third of American adults are obese. Among children and adolescents, the obesity rate is nearly twenty percent. About a quarter of New Yorkers are hypertensive with that rate increasing dramatically for older residents. Changing the environment so that people by default eat healthier foods and live more active lifestyles are two ways to make people healthier over time.
About a third of meals are consumed outside of the home. While the federal Nutrition Labeling and Education Act of 1990 mandated that foods sold in supermarkets bear nutrition fact panels, the Act did not require restaurants to provide any information about the foods they serve. The City’s Board of Health sought to fill this gap. In 2006, the Board of Health amended the Health Code to require any restaurant that was already voluntarily providing calorie information to put that information at the point of purchase where customers could see it. The restaurant industry challenged the rule claiming both that it was preempted by the Nutrition Labeling and Education Act and that it violated the First Amendment by compelling speech. In New York State Restaurant Association v. New York City Board of Health, 509 F.Supp.2d 351 (S.D.N.Y. 2007), Judge Richard Holwell held that the particular way the rule was crafted conflicted with federal law. While the City could have simply mandated that restaurants disclose nutritional information, it could not tie the disclosure requirement to a previous voluntary statement about calories because voluntary statements about calories are nutrient content claims that only the FDA could regulate.
In response to that decision, the Board of Health adopted a new rule in 2008 to mandate that chain restaurants post calorie information on their menus and menu boards. The federal court upheld this version of the rule in NSRA v. Board of Health, 556 F.3d 114 (2d Cir. 2009), this time reaching both the preemption and First Amendment claims. Chain establishments now have been posting calorie information in the City for more than ten years. As other jurisdictions began enacting their own menu labeling requirements, the restaurant industry – which had opposed federal menu labeling in 1990 – asked Congress to adopt uniform federal requirements for chains. Congress complied in 2010 and included nutrition labeling requirements in the Affordable Care Act.
The federal labeling requirements expanded the types of retail food establishments that must post calories and required all covered establishments to have additional nutritional information on site for their customers. Some of these new requirements required rule making by the federal Food and Drug Administration. The FDA finalized its rules in 2014, but on multiple occasions announced that it would delay enforcing them. The New York City Board of Health meanwhile amended the City’s labeling requirements to harmonize them with the federal rules by including chain supermarkets and requiring that additional nutrition information be on site. The City initially chose not to enforce these requirements while the FDA was not enforcing its rules. In May 2017, however, the FDA announced that it was going to delay enforcement for another year. This time, the City announced that it would not wait for the FDA to begin enforcing its rules and that all covered establishments needed to comply with the City Board of Health’s requirements. Various industry groups sued in federal court claiming preemption. After the FDA committed to no further delays in its enforcement, the City agreed to delay enforcing its rules until that time and the case was resolved. As of May 2018, chain restaurants and retail establishments throughout the country have been obligated to post calories and provide other nutrition information upon request.
Eliminating trans fats
Artificial trans fats are created when liquid vegetable oils are hydrogenated to be made solid. The food industry began using partially hydrogenated oils widely in the 1950s because they are inexpensive and have many benefits in food processing. Consuming artificial trans fats, however, increases one’s risk of coronary artery disease. For this reason, in 2006 the Board of Health banned restaurants in New York City from serving items that contain trans fats. The prohibition was gradual, accounting for the time it would take to find substitute oils and preparation methods, but it resulted in the removal of artificial trans fats from the City’s restaurant food supply. The restaurant industry did not challenge the prohibition.
Prior to 2013, the FDA regarded trans fats as generally recognized as safe, or “GRAS”, and did not require food manufacturers to submit premarket reviews of food containing them. That year, however, the FDA removed GRAS status for trans fats and then, in 2015, set a three-year time limit for the removal of trans fats from all processed foods nationally. The FDA’s actions have effectively removed trans fats from the national food supply.
Reducing the size of sugary beverages
Sugary beverages are a major contributor to the obesity epidemic and consumption of them is associated with an increased risk of diabetes. In addition to containing large amounts of sugar, sugary beverages lack nutritional value and leave you still hungry. Restaurants and beverage makers have dramatically increased the sizes of the containers in which sugary beverages are sold. When McDonald’s, for instance, opened in the 1950’s, it sold only a 7-ounce soda. Today, its medium-sized offering is 21 ounces and its large size is 30 ounces. A person ordering the latter will consume about 80 grams of sugar and nearly 300 calories.
In 2012, the Board of Health attempted to regulate how restaurants sell these unhealthy beverages by limiting the sizes of their containers to 16 ounces. The restaurant and beverage Industries aggressively attacked the initiative, spending millions of dollars in a public relations campaign against the regulation and challenging it in court. In New York Statewide Coalition of Hispanic Chamber of Commerce v. the New York City Department of Health and Mental Hygiene, 23 N.Y.3d 681 (2014), a divided Court of Appeals upheld lower court decisions invalidated the 16-ounce rule, ruling that only the State legislature can limit the size of sugary beverages that New Yorkers can buy.
Warning about Sodium
When overconsumed, sodium can increase blood pressure. Hypertension, or high blood pressure, is a major risk factor for stroke and cardiovascular disease. For this reason, the federal dietary guidelines recommend that all Americans limit their sodium consumption to less than 2300 milligrams per day. Hypertensive adults should consume even less; the recommended daily intake for them is no more than 1500 milligrams. Yet most people regularly exceed these recommendations consuming on average about 3400 milligrams of sodium each day. Because most sodium in the diet comes from eating processed and restaurant foods, even people aware of the dietary guidelines find it difficult to follow them.
When Congress included federal nutritional labeling requirements in the Affordable Care Act, it simultaneously preempted states and localities from imposing additional labeling requirements on restaurants. Because of federal preemption, the Board of Health could not require restaurants to post sodium amounts on their menus in 2015 as it had made them do for calories in 2008. Federal law, however, does not preempt states and localities from requiring warning statements about the safety of a food item or any of its components. The Board of Health thus amended the Health Code to require that chain restaurants identify items on their menus that are high in sodium with a special icon and warn costumers about the health risks associated with consuming too much sodium.
The Health Code’s required warning about salt consumption is conservative from a public health perspective. The warning only applies to items that contain more than 2300 milligrams, an amount equal to an entire day’s worth of sodium and clearly unhealthy. Yet, the warning serves to alert customers to the fact that a surprisingly large number of high sodium items are being sold in restaurants and that these items put diners at risk for hypertension, stroke and heart disease.
The restaurant industry, citing the sugary drink portion cap case, challenged the authority of the Board of Health to require the sodium content warnings. The salt warning rule, however, did not generate the same public debate as had the portion cap rule. The State Supreme Court refused to enjoin enforcement of the salt warning rule, holding that warnings were well within the Board of Health’s authority. The First Department affirmed effectively ending the restaurant industry’s challenge. National Restaurant Association v. New York City Department of Health and Mental Hygiene, 148 A.D.3d 169 (1st Dep’t 2017).
Other Efforts and Results
The City’s efforts to reduce obesity and fight heart disease have not just been about regulating the food we eat. Some initiatives aim to increase access to fruits and vegetables. In 2008, for instance, the City created the Green Cart program creating a new class of mobile food vending permits that can only be used to sell fruits and vegetables in underserved areas of the City. Another program, the Health Bucks program, gives New Yorkers who receive Supplemental Nutrition Assistance Program benefits, also known as SNAP or food stamps, additional purchasing power to buy locally-grown produce. For every $5 dollars spent at a farmers market using SNAP, a recipient shopper receives $2 in Health Bucks coupons. Other initiatives, like the “Make New York City Your Gym” media campaign, promote healthier lifestyles.
Some data suggest that the City’s activities have affected people’s behaviors. Both before and after implementing menu labeling in the City, the Department of Health collected receipts from and surveyed customers eating at fast food restaurants. The results of its study showed that people eating at restaurants with menu labeling purchased meals with fewer calories. A study looking at Starbucks receipt data after Seattle implemented menu labeling also showed a decline in calories ordered, and in 2018 researchers at Cornell University concluded that consumers order less food when menus are labeled.
Even though the City’s attempt to regulate how sugary beverages are served failed, it focused attention on the health risks associated with consuming them. In its annual health survey of New Yorkers, the Department of Health includes questions about the participants’ consumption of sugary beverages. The responses to these questions during the years when the Board of Health’s authority was being challenged show a sharp decline in their consumption.
Obesity, diabetes and heart disease follow from years, or lifetimes, of unhealthy eating. The ultimate success of New York City’s efforts to promote healthy living thus may not be known for some time.
Thomas G. Merrill is the General Counsel of the New York City Department of Health & Mental Hygiene.