The New York Court of Appeals struck down the NYC ban on the sale of large sugary drinks, upholding the Appellate Division decision. The Court based its decision on separation of powers, stating that
We hold that the New York City Board of Health, in adopting the “Sugary Drinks Portion Cap Rule”, exceeded the scope of its regulatory authority. By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York.
This rule was proposed by former Mayor Michael Bloomberg, and adopted by the NYC Board of Health in 2012. It proposed to amend Article 81 of the NYC Health Code to state that “[s]ugary drinks may not be sold or provided in cups or containers that can contain more than 16 fluid ounces,” and established a fine of $200 for each time the rule was violated by a food service establishment.
This rule was part of the effort by the NYC Obesity Task Force to combat obesity. The Court of Appeals suggested other ways the task force could accomplish its goals, including “instruction (i.e. health warnings on large containers or near vending machines) to outright prohibition.”
The case is N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, No. 134, 2014 NY Slip Op 04804 (June 26, 2014).
- John Caher, High Court Strikes Down City’s Sugary Drink Limits, New York Law Journal, June 27, 2014.
- Marlene Kennedy, Another Nail Hammered Into Sugary-Drink Ban, Courthouse News Service, June 27, 2014.
- Drink Up: NYC Ban on Big Sodas Canned, June 27, 2014.
- Sugary Drink Portion Cap Rule: Fact vs. Fiction, N.Y.C. Dept. of Health
- Sugary Drinks, N.Y.C. Dept. of Health.
- Dietary Guidelines for Americans, U.S. Dept. of Agriculture.
Thanks to Prof. Pittson for posting this article on an important case that has received widespread attention.
On June 6, Pace 2013 grad Anthony DiPietro and I attended the oral arguments before the Court of Appeals in this case. At oral argument, Mr. Richard Dearing, representing the Board of Health, focused his primary argument on the proposition that the Board’s cap rule was not properly understood as an “administrative” ruling but was issued pursuant “legislative authority,” which he termed “plenary,” conferred on the Board by the State Legislature. He therefore argued that the Court of Appeals’ Boreali analysis (for determining when an administrative agency exceeds its powers) was inapplicable. As a fallback argument, Mr. Dearing argued that the Board’s cap rule withstands Boreali analysis.
By a 4-2 vote (one judge not participating), the Court of Appeals disagreed. The court’s majority held that the legal status of the Board of Health was such as to make the Boreali analysis applicable. Applying this analysis, the majority held that the Board’s cap rule exhibited policy considerations appropriate only for a legislative body and exceeded the scope of the Board’s limited authority.
Judge Read wrote an extensive and vigorous dissenting opinion, which was joined by Chief Judge Lippman. Judge Read agreed in essence with Mr. Dearing’s key points about the Board’s legislative authority and the inapplicability (or proper application) of the Boreali analysis.
The majority and dissenting opinions in this case merit careful study by anyone interested in New York State and New York City law.