Appeal in NYC Sugary Drinks Case Set for June; Decision by Judge Tingling Cites Loopholes and Questions Imminence of Danger Due to Obesity; State of Mississippi Responds

March 21, 2013

By Etan J. Yeshua

New York City's portion cap rule will have its day in court (again) in early June.  The rule, which would have fined food service establishments for each sugary drink sold in a container larger than 16 ounces, was challenged and struck down last week by a New York State Supreme Court judge who concluded that the rule was invalid and ordered the City not to enforce it.  Within 24 hours of the decision, the City filed a notice of its intent to appeal, and the next day the Appellate Division, a mid-level court, agreed to hear the case.  (In New York State, the Supreme Court is a trial-level court; the highest court is the Court of Appeals.)

Judge Milton A. Tingling, who published his decision only a day before the rule was scheduled to take effect, held that the City Board of Health overstepped the bounds of its authority by passing the so-called "soda ban" and that the rule itself was arbitrary and capricious.  In doing so, Judge Tingling reached a number of conclusions about the rule's purpose, its potential effects, the responsibilities of New York City's Board of Health, and the extent to which obesity is a threat to the City.  Some of these conclusions are perhaps more vulnerable on appeal than others, but the City's quick move to appeal the decision suggests that the Mayor's camp believes there is a real possibility that the ruling will be overturned.

Separation of Powers

First, Judge Tingling found that the Board of Health violated the separation of powers doctrine of the New York State Constitution.  Citing Boreali v. Axelrod, 71 N.Y. 2d 1 (1987), in which a smoking ban passed by the Public Health Council (an executive body) was deemed an inappropriate exercise of legislative power, Judge Tingling applied the four-factor Boreali balancing test to determine whether the portion cap rule: 1) was based on concerns "not related to the stated purpose of the regulation,"; 2) was created on a "clean slate" without the benefit of legislative guidance; 3) intruded upon "ongoing legislative debate," and; 4) required the expertise of the body passing the rule.  Only the last of these was weighed in favor of the City, and without much discussion.  The others, however, are sure to be hotly contested by the City on appeal. 

For example, in reaching the conclusion that the rule was based on concerns not related to curbing obesity and chronic disease, Judge Tingling relied on a statement in the City's memorandum of law that acknowledged the economic toll of obesity, including health expenditures such as Medicare and Medicaid funding.  Judge Tingling concluded that "[t]he statement of the financial costs related to the chronic epidemic further evidences a balancing being struck between safeguarding the public's health and economic considerations."  Although he did not fully explain how the interests in curbing obesity and in reducing health care expenditures are at odds, Judge Tingling concluded that "[t]his is impermissible and the court therefore holds the regulation violates the first prong of Boreali."
In finding that the rule was created on a "clean slate," as opposed to merely "fill[ing] in the details of a broad legislation," Judge Tingling traced the history of the New York City Charter from 1686 through 2012.  Although he concluded that the Board of Health "has very broad powers under the City Charter dating all the way back to its conception" and that major amendments expanding the Board's power "all occurred under times of increased disease," Judge Tingling was not convinced that, currently, "the City is facing eminent [sic] danger due to disease."  Whether the responsibilities of the Board of Health are limited to acutely communicable diseases, and the extent to which obesity and related chronic diseases pose imminent danger to the City of New York, are issues that will almost certainly be reargued in June before the State Supreme Court.

Arbitrary and Capricious

Even if the City does demonstrate on appeal that promulgating the rule was within the authority of the Board of Health, it would still have to convince the State Supreme Court that, contrary to Judge Tingling's conclusion, the rule is not arbitrary and capricious.  For example, although the City argued that exemptions for certain types of milk and juices were based on the redeeming health benefits of those drinks, Judge Tingling considered these to be "suspect grounds."  Whereas the City argued that the rule was intended to address consumers' "overwhelming [tendency to] gravitate towards the default option" of larger drinks, and to ensure that consumers who are "intent upon consuming more than 16 ounces… make [a] conscious decision to do so," Judge Tingling argued that the lack of any limitations on refills was a loophole that could "defeat, and/or serve to gut the purpose of the Rule." 

Finally, Judge Tingling cited "uneven enforcement even within a particular City block" as evidence of the rule's "arbitrary and capricious consequences."  The City argued that it did not seek to exclude any food establishments and that it would enforce the rule against grocery stores, bodegas, and markets, like 7-Eleven, if the court found that such establishments – which are regulated pursuant to a Memorandum of Understanding with the State – could be subject to the rule.  Judge Tingling, however, cited the lack of "evidence of any prior attempts to coordinate with the [State] on the Portion Cap Rule" and concluded that the rule "is arbitrary and capricious because it applies to some but not all food establishments."  The City similarly argued that preemption by State laws regarding alcohol barred it from applying the rule to alcoholic drinks.

There is not yet any indication that the City is redrafting the rule and/or attempting to get it passed by the City Council, the City's legislative body.  If left to the courts, a final decision from the State Court of Appeals may not come down until after the rule's staunchest advocate, New York City Mayor Michael Bloomberg, has left office.

Meanwhile, in Mississippi…
Governor Phil Bryant of Mississippi signed into law yesterday a measure that some state legislators are calling the “anti-Bloomberg bill.”  Senate Bill 2687, now officially law in Mississippi, prohibits local governments from restricting soda size, requiring calorie counts on menus, and banning toys in kids’ meals.  The law prohibits Mississippi towns, cities, and counties from restricting the sale of food “based upon the food’s nutrition information,” thus proscribing not only laws about soda size, but also any restrictions on sugar, salt, or fat content, like the ban on artificial trans fats enacted by the New York City Board of Health in 2006.  Mississippi lawmakers defended the measure saying that it would protect personal choice and prevent a patchwork of inconsistent regulations throughout the state.

In response, Mayor Bloomberg described the Mississippi law as “inconceivable,” remarking that “in the state with the highest rate of obesity, they passed a law that says you can’t do anything about it.”  At a press conference last week, the mayor cited his prior public health initiatives, including the ban on trans fats, and expressed confidence that Judge Tingling’s decision would be overturned: “There are many, many instances where a lower court decision has gone against us and then been reversed.”