HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, July 30, 2013

New York Appellate Court Rules NYC's Large Size Soda Ban Violates State Constitution

Hat tip to Professor Ruthann Robson from over at Constitutional Law Prof Blog for this story:

The super-size soda ban, a program advocated by NYC Mayor Michael Bloomberg, is not constitutional according to the unanimous opinion from a state appellate court in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene. 

The court affirmed a state trial court's decision that the NYC regulation prohibiting sugary  drinks in restaurants, movie theaters and arenas that exceed 16 ounces was an unconstitutional exercise of power by a city agency, as well as arbitrary and capricious.  A good discussion of the trial court's decision is here.

Essentially, the issue is whether NYC Health Code §81.53, known as the "portion cap rule" is within the power of the Department of Health.  The short answer by the judicial branch: no. 


In today's opinion, the court held that the NYC

Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks. It therefore violated  the state principle of separation of powers. In light of the above, we  need not reach petitioners' argument that the subject regulation was  arbitrary and capricious. Before concluding, we must emphasize that nothing in this  decision is intended to circumscribe DOHMH's legitimate powers. Nor is  this decision intended to express an opinion on the wisdom of the soda  consumption restrictions, provided that they are enacted by the  government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the  protection of the public health and have great latitude and discretion  in performing their duty to safeguard the public health.

Doctrinally, the decision is most pertinent to New York state constitutional law and administrative law scholars and practitioners.  It has broader interest, however, to those interested in the powers of governments to enact regulations that (arguably) promote health.

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