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06.27.14

New York’s Ban on Large Sodas Put to Rest in NY’s Highest Court

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busThis post was written by Fernanda Alonso, O’Neill Institute Research Assistant. Comments or questions about this post can be directed to  fa265@georgetown.edu.
On June 26, 2014, New York’s highest court refused to reinstate New York City’s ban on the sale of large sodas and other sugar drinks. This bill—passed on March 12, 2012 by eight members of the city’s health board—intended to prohibit the sale of many sugary drinks larger than 16 ounces in volume (this includes sodas, energy drinks, fruit drinks and sweetened teas).[1] This implied that all restaurants, movie theatres, sports stadiums and food carts would be banned from selling these drinks in presentations larger than 16 oz.[2] On September 13, 2012, New York City’s Board of Health voted unanimously to accept the proposed limit, strongly supported both by Mayor Michael Bloomberg and later by his successor Mayor Bill de Blasio. The limit was to take effect six months after passage and be enforced by the city’s regular restaurant inspection team, allowing business owners three additional months to adapt to the changes before facing fines.[3]

The ban, which met with strong opposition from the industry, as well as from the public, faced its first obstacle with the invalidation of the law by Judge Milton Tingling of the New York Supreme Court on March 11, 2013.[4] The City Department of Health and Mental Hygiene, with the support of the mayor’s office appealed. On July 30, 2013, the state Supreme Court Appellate Division reaffirmed the ruling, saying the proposed ban violated “the principle of separation of powers” and the board “failed to act within the bounds of its lawfully delegated authority”. The four-judge panel stated that the city’s health board was acting too much like a legislative body when implementing the ban, also stating that they ban was not based on conclusive scientific evidence; the Court didn’t believe sugary drinks were “inherently harmful”.[5]
On June 26—almost a year later—this decision was reaffirmed when the state’s highest court refused to reinstate the ban. Like the previous decision, the court argued that the city’s health department had overstepped its limits when establishing the limit on beverage size. The 4-2 decision was based more on procedural matters than on the actual health merits of the ban, which were largely ignored.[6] As part of the arguments, the majority determined that the city’s board engaged in policy-making and legislation and not simply health regulations. Judge Eugene Pigott Jr., who wrote for the majority stated: “The Board of Health engaged in law-making beyond its regulatory authority… It is clear that the Board of Health wrote the Portion Cap Rule without benefit of legislative guidance.” He went on to write that the city health regulators had also exceeded their functions when weighing the economic, social and health implications of the ban—as this is a policy function not meant to be implemented by this board.[7]
On the other side of the decision, the two dissenting judges wrote that they believe the health board was within its rights to impose the ban, and that the judiciary shouldn’t “step into the middle of a debate over public health policy.”[8] In 2007, the city health board had already legally banned trans fats in food, whilst requiring the posting of calorie chain counts at fast food restaurants—with the same necessary authority. In her dissenting opinion—backed by the court’s chief judge, Jonathan Lippman— Judge Susan Read wrote that the difference in this case was that soda-ban opponents had asked the court “to strike down an unpopular regulation, not an illegal one.” She went on to say that “if the People of the City or State of New York are uncomfortable with the expansive powers first bestowed by the New York State Legislature on the New York City Board of Health over 150 years ago, they have every right and ability to call on their elected representatives to effect change, this court, however, does not.”[9]
As expected, the decision was met with mixed reactions. On the one hand the American Beverage Association stated, “We are pleased that the lower courts’ decisions were upheld.” In a statement presented after the court’s decision they continued stating that if the restrictions had been reinstated it would have “created an uneven playing field for thousands of small businesses in the city and limited New Yorkers’ freedom of choice.”[10]
Another quick to praise the decision was City Council Speaker Melissa Mark-Viverito, who once again touched upon procedural, rather than substantial matters. Mark-Viverito criticized the way Mayor Bloomberg had circumvented the City Council, rather than the foundations of the ban: “The reasons for implementing these policies were maybe sound ones, but the way they went about it were maybe not well thought out and was going to be onerous… If the mayor was to implement a policy that needed council review, we’ll review it. Right? We’ll have hearings and we’ll discuss it and we’ll take appropriate action. Based on what the courts have said, maybe the policy will take a different form that maybe is more acceptable to us.”[11]
On the other hand, Mayor de Blasio, saw the decision as a setback in combating New York’s health problems. In a statement he said: “We are extremely disappointed by today’s court decision that prevents the city from implementing a sugary drink portion cap policy. The negative effects of sugary drink over-consumption on New Yorkers’ health, particularly among low-income communities, are irrefutable.”[12] His views where echoed by former health commissioner Dr. Tom Farly. “I think it’s a terrible decision. The Board of Health was doing exactly what it should be doing, protecting the health of New Yorkers,” he said. “They’ve done it in the past in prohibiting trans fat in restaurants and banning lead in paint, so this decision will hurt the health of New Yorkers.”[13]
At this point, the city has not announced whether it will try to appeal this decision; it is unlikely that an appeal to the Supreme Court will occur because the particular case centers on local government authority and legislation rather than any federal issues. However, both De Blasio and City City Health Commission Mary T. Bassett stated that they will continue looking for ways to limit the negative effects of aggressive marketing of sugary drinks and unhealthy food and that it remains their responsibility to address the causes of the epidemic in order to protect the health and well-being of the communities. The ruling does not change the fact that “sugary drink consumption is a key driver of the obesity epidemic, and we will continue to look for ways to stem the twin epidemics of obesity and type 2 diabetes,” Bassett said after the Court’s decision had been issued.
[1] “New York City bans supersize sodas”, BBC, September 13, 2012, available at: http://www.bbc.com/news/world-us-canada-19593012.
[2] The law excluded drinks that are more than 70 percent fruit juice, diet sodas, or beverages that contain alcohol. It also would not apply to drinks sold in grocery stores, regulated by the state.
[3] Lerner, George, “New York health board approves ban on large sodas”, CNN, September 14, 2012, available at: http://www.cnn.com/2012/09/13/health/new-york-soda-ban.
[4] Jaslow, Ryan, “Bloomberg “confident” soda ban will be upheld”, CBS News, March 11, 2013, available at: http://www.cbsnews.com/news/bloomberg-confident-soda-ban-will-be-upheld/.
[5] Chasmar, Jessica, “Appeals court upholds ruling against Mayor Bloomberg’s soda ban”, The Washington Times, July 30, 2013, available at: http://www.washingtontimes.com/news/2013/jul/30/appeals-court-upholds-ruling-against-mayor-bloombe/.
[6] “High Court Won’t Reinstate New York City’s Big Soda Ban”, CBS, June 26, 2014, available at: http://newyork.cbslocal.com/2014/06/26/high-court-wont-reinstate-new-york-citys-big-soda-ban/.
[7] “NYC’s big-soda ban is dead”, Associated Press, June 26, 2014, available at: http://nypost.com/2014/06/26/highest-court-in-ny-refuses-to-reinstate-big-soda-ban/.
[8] Idem.
[9] Yancey, Roy, “NY top court strikes down NYC big-soda ban”, Newsday, June 26, 2014, available at: http://www.newsday.com/long-island/politics/spin-cycle-1.812042/ny-top-court-strikes-down-nyc-big-soda-ban-1.8576232.
[10] Associated Press, supra note 7.
[11] Yancey, supra note 9.
[12] Idem.
[13] CBS, supra note 6.

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