HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Monday, June 9, 2014

Guest Blogger Associate Professor Seema Mohapatra: The Soda War Continues

Mohapatra_sToday, the New York Court of Appeals heard arguments on Former Mayor Michael Bloomberg’s 2012 proposed restriction on the sale of large sizes of sugary drinks by certain businesses in New York City. The New York City Department of Health and Mental Hygiene (DOHMH) and Board of Health argued before the Court to reinstate the rule, which would restrict the sale of soda and other sugary beverages larger than 16 ounces. Based on preliminary reports, they may have had a promising audience (at least, based on Chief Judge Jonathan Lippman’s questions). According to the New York Daily News, Lippman described the portion cap as a “relatively modest regulation” and “questioned why it was any different from previous efforts to ban trans fats or add fluoride to water.”[1] Lippman further asked the attorney representing the American Beverage Association and other opponents of the ban, “Put aside the hype about what they are doing, what is so revolutionary?” This is in line with the arguments that the Board of Health and DOHMH made in their brief before the Court of Appeals. They argued that the Board has legislative authority in the area of public health, "which is demonstrated through its previous requirements of fluoridation of city water, posting calorie counts on menus, restricting trans fat use in restaurants, and banning the use of lead paint in residences." Although sometimes referred to as the Big Gulp ban, and the basis of endless fodder for late night television gags, the proposed rule actually did not actually ban any soda and did not apply to convenience stores, grocery stores, corner markets, gas stations and the like. Rather the portion cap rule limits the serving size for “non-diet soft drinks, sweetened coffee and tea, energy and sports drinks, hot chocolate, and sweetened juices, but excludes alcoholic beverages, milkshakes, fruit smoothies, mixed coffee drinks, mochas and lattes, and 100 percent fruit juices."[2]

Bloomberg proposed the rule in May 2012, attempting to address the rising obesity rates in New York. Fourteen members of the City Council opposed the proposal and argued it should be submitted to the Council for a vote. Instead, DOHMH submitted the amendment to the Board of Health, and in September 2012, the Board adopted the rule without any changes. Unions and associations representing the affected business owners brought action to challenge the validity of the rule. Both the trial court and the appellate division found in their favor, concluding that the rule violated the separation of powers doctrine. The court concluded that the Board of Health crossed the line between administrative rulemaking and legislative policymaking, and held that it was not free to write its own new rules in the absence of legislative direction. 

The attorney opposing the Rule framed the argument as a question of government intrusion, stating “A government body has taken it on to itself to have government intrude…in a way, in peoples personal decisions.” Should this line of reasoning win the day, it would tie the hands of public health advocates in the future. New York has often led the way in public health innovation. Michael Grynbaum argued in today’s New York Times that a decision that rules against the Board “could upend the board’s historic role as a muscular and innovative enforcer of healthy living standards, clearing slums to fight cholera a century ago; enacting a first-in-the-nation ban on lead paint in 1959, an initiative later replicated around the world; and fighting to have calorie counts posted on restaurant menus.”

We will find out in a few weeks who won the day. Regardless of how the Court rules, it is important to examine whether the portion cap rule was indeed “a reasonable and science-based effort to combat obesity” as the City Attorney argued.  Several minority groups joined the opposition to the ban because they felt that the portion cap rule disproportionately affected mom and pop stores and minority owned businesses- so it is not clear whether this really was as reasonable as the City Attorney claimed. Also, the portion cap rule did not include diet soda, reasoning that such drinks were calorie free.  However, there have been numerous studies showing that diet drinks do not help with weight loss and may in fact contribute to weight gain. If the purpose of the rule was to fight obesity, carving out diet soda may not be "science-based."  If public health officials are going to try to get people healthy through creative and arguably strong-handed measures, they need to ensure that such measures comport with scientific reality and take into consideration the community perception of these interventions. Public health measures may be better received if they are bottom up measures- with the buy-in and efforts of the communities affected- rather than top-down measures.  It is difficult however to parse out how much influence special interests have on communities, and this needs to studied further. Without community support, public health officials risk being perceived more as tools of a nanny state than as respected professionals.

-Guest Blogger Professor Seema Mohapatra

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