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Sugary Beverages Have Their Day in Court

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          largeYesterday, the Appellate Division of the New York Supreme Court (“the Court”) affirmed the State’s Supreme Court decision finding that the New York City Board of Health and Mental Hygiene’s  (DOHMH) Sugary Drinks Portion Cap Rule, or the “Soda Ban” was unconstitutional. Accordingly, the Appellate Court concluded that “in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority. Accordingly, [the Court] declare[d] the regulation to be invalid, as violative of the principle of separation of powers.”

As the Court explicitly points out, the decision rests not on the subject matter of the regulation, but on the legal doctrine of separation of powers. In other words, the Court considered whether the DOHMH, an administrative agency as opposed to a legislative body, is constitutionally vested with the authority to promulgate a limit on the number of ounces of soda that certain vendors can sell.

This Court drew a bright line distinction between the powers of an administrative agency, here the Board of Health, and the legislature, in this case the City Council. As the Court explained, “[b]ecause the Constitution [of the State of New York] vests legislative power in the legislature, administrative agencies [like the Board of Health] may only effect policy mandated by statute and cannot exercise sweeping power to create whatever rule they deem necessary.” The Board of Health argued that by virtue of its mandate to act on any health related matter, it is constitutionally permitted to promulgate rules in the interest of the public health, like the Soda Ban.

In reaching its decision, however, the Court relied on a narrow interpretation of the authority constitutionally delegated to an administrative agency, finding the Soda Ban to be a usurpation of legislative authority. Relying on a four-part test (first established in Boreali v. Axelrod (71 NY2d 1 [1989]) to demarcate what is often a fuzzy line between administrative rulemaking and legislative policymaking, the Court determined that the New York Soda ban violated the Separation of Powers Doctrine.  To that end, they found no need to determine whether the rule itself was arbitrary and capricious.

The first prong of the test seeks to find the balance between competing concerns of public health, social and economic costs. In Boreali, the court found that the effort to “[s]trik[e] the proper balance among health concerns, costs, and privacy interests…is a uniquely legislative function.” (71 NY2d at 14). In this case, the Court pointed to the economic exemptions written into the Soda Ban, which apparently suggests that the DOHMH weighed the potential benefits of the ban against economic considerations that contributed to the scope of the Ban. For example, the Court points out that the Soda Ban is not equally applied to all merchants of 16-ounce beverages, or all sugar-laden beverages for that matter. Accordingly, the Court concluded that because there are non-health concerns motivating the purview of the Ban, “… the ‘Soda Ban’ is one especially suited for legislative determination as it involves ‘difficult social problems,’ which must be resolved by “making choices among competing ends” (Boreali, 71 NY2d at 13).”

The second prong of the test asks whether the regulation was created on a “clean slate,” or, in other words, whether the regulation creates its own set of rules, as opposed to filling in details of legislation originating in the legislature. Here, the Court found that the DOHMH wrote on a clean slate in promulgating the soda ban as opposed to filling in the details of a regulation determined by the legislature. Because the Ban originated in an administrative agency, it was found to violate the separation of powers doctrine

Third, the test considers whether the regulation intrudes upon an ongoing legislative debate. The Court pointed to various unsuccessful attempts by both the City and State legislatures to target sugar-sweetened beverages. Therefore the Court found a “strong indication that the legislature remains unsure of how best to approach the issue of excessive sugary beverage consumption.”

Lastly, the test asks whether specific expertise or technical competence was involved in the development of the regulation? Here, the Court found that because the deleterious effects of sugary drinks are already known “the Board of Health [did not exercise] any special expertise or technical competence in developing the Portion Cap Rule.”

In sum, the court found that the Soda Ban was constitutionally invalid because it violated the constitutionally prescribed duties of an administrative agency.

In a written statement, Mayor Bloomberg called this new decision a “temporary setback” and vowed to appeal.

For more on the public health perspective on the proposed soda ban and the impact of the Court’s failure to uphold the ban, see here.


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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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