statue-crownGuest Commentary

by Sara Norman, a 2013 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

New Yorkers will still be able to purchase large fountain drinks at restaurants, movie theaters, and stadiums thanks to the New York State Supreme Court, Appellate Division’s unanimous opinion that the Portion Cap Rule was an overreach of executive power.

The brain child of New York City Mayor Michael Bloomberg and City Health Commissioner Thomas Farley, the Portion Cap Rule (aka “soda ban”) would have prohibited the sale of sugary sodas and energy drinks over 16 ounces in many, but not all, city venues. The city officials viewed large soft drinks as an unnecessary evil that contribute to obesity.

The appeals panel took a different approach to the soda ban than did Justice Milton Tingling in her lower court opinion. Whereas Justice Tingling struck the ban down as arbitrary and capricious, Justice Renwick relied upon the separation of powers doctrine in her ruling. She held that the power to impose such a ban resides solely with the legislature (the New York City Council, in this instance) rather than an administrative agency such as the Department of Health. WLF had similarly warned in its comments on the soda ban that the Mayor and his agencies could not engage in such legislative action.

As Justice Renwick pointedly reminded the Department, “14 members of the New York City Council wrote to the Mayor opposing the proposal and insisting that, at the very least, it should be put before the Council for a vote. This did not occur.”

She proceeded to analyze the Department of Health’s assertion of power under New York Court of Appeals precedents involving how authority is allocated among the branches of government.  She wrote:

. . . [T]he Board did not fill a gap in existing regulatory scheme but instead wrote on a clean slate. . . . [N]either the State Legislature nor the City Council has ever promulgated a statute defining a policy with respect to excessive soda consumption, the purported subject of the regulation. . . . [T]he City Charter’s grant of broad authority to the Board of Health to regulate ‘all matters affecting the health of the City’ . . . although seemingly broad in scope, does not authorize the Board’s action.

One key factor in the separation of powers analysis is whether the Department of Health acted “solely with a view to public health considerations.” The court pointed first to the numerous exemptions, both for types of drinks and for certain purveyors of covered drinks (7-Elevens, bodegas, etc.), as evidence that the Department had weighed economic and other non-health factors when crafting the ban. Second, despite all the City’s demonization of soft drinks, the Department did not (and could not) categorize the targeted drinks as inherently unhealthy or their consumption as a health hazard. Thus, the portion ban “necessarily looks beyond health concerns, in that it manipulates choices to try to change consumer norms.” The court added that the Department’s failure to classify soda consumption as a health hazard, on its own, was enough to show that it was impermissibly legislating.

As a matter of pure public policy, Mayor Bloomberg’s effort, as the court put it, to “manipulate choices” is entirely inappropriate, and it’s unlikely the city council would have ever enacted it. That, of course, is why the Mayor attempted to circumvent those elected representatives. The separation of powers doctrine, both at the federal and state levels, exists to prevent such end-runs and thereby protect our freedom.

Mayor Bloomberg and his health commissioner, eager to “do something” about obesity and perhaps please the anti-Big Soda activist crowd, forced the paternalistic ban down the throats of New Yorkers. Thankfully, neutral legal principles carried the day, and the Mayor is left asserting his intention to file what will be a futile appeal.

So drink up, New Yorkers, raise a 20-ouncer to the rule of law.