Tuesday, June 10, 2014
On June 4, 2014, the New York Court of Appeals heard the New York City Board of Health’s appeal of the decision striking down its Portion Cap aka Soda Ban rule. (The choice of name reflects one’s position on the issue.) That rule would prohibit certain businesses from selling “sugary drinks” in containers larger than 16 ounces. (“Sugary drinks” do not include milk products, fruit juices or alcoholic beverages.) The trial court struck down the rule as beyond the Board’s jurisdiction, violating separation of powers,and the Appellate Division unanimously affirmed.
The high court’s decision may not appear until July, but the case highlights issues central to public health regulation today: general grants of administrative authority, expanding definitions of public health, and increasing attention to the role of individual behavior in chronic disease development.
For now, let’s focus on the jurisdictional issue. Let’s begin with the assumption that a legislative body like the New York City Council could enact such a rule. (Whether it would make a significant dent in obesity rates and whether that would save the city money are different questions.) Let’s also assume that the rule’s opponents care far less about the public’s health than about their own revenues. The question before the court was simply whether the Board of Health had the jurisdiction to do what the City Council could – but did not – do. In other words, is the rule the type of action that an administrative body can take or did the Board usurp the City Council’s legislative authority?
The Board claimed that it “is not just a typical administrative agency, but is an entity with legislative authority,” and, furthermore, that the city need not adhere to the state’s separation of powers doctrine. The Board’s goal is to reduce the amount of sugar-sweetened drinks people consume in order to reduce people’s weight so that the prevalence of chronic diseases associated with obesity would decline (and reduce the city’s health care expenses for chronic disease care). The City Charter gives the Health Department jurisdiction “to regulate all matters affecting health in the city of New York and to perform all those functions and operations performed by the city that relate to the health of the people of the city," which include the "control of communicable and chronic diseases" and regulating the "food and drug supply." So, what does this authorize the Board to do?
On one hand, the Court of Appeals could find that the Charter’s broad language gives the Department – and, by extension, its Board of Health – the power to issue the rule. After all, excessive consumption of sugary sodas contributes nothing but calories to the diet and may affect health.
On the other hand, the court could find that the authority to regulate anything that affects health sweeps too broadly, since almost anything can be seen as affecting health in some measure. It seems unlikely that the Board could regulate speed limits or gun ownership, even though both affect health. At oral argument, the judges reportedly asked whether the Board would have the independent power to ban hamburgers or M&Ms., While expressing sympathy with the Board’s action, one judge asked whether there is any principle limiting the Board’s jurisdiction to make rules without more specific legislative authority. Apparently, counsel had no chance to respond.
More than half the City Council Members, joined by the City’s Public Advocate, submitted an amicus brief arguing that only the Council could authorize this type of rule. But, the Council is unlikely to do so. Public health advocates are justifiably frustrated by legislative inaction. If a health department cannot act, who will? Others worry that broad or vague delegations of authority mean that the public is left to rely on agency discretion to act responsibly and not overreach.
Whatever the court decides, the real question is whether an executive branch agency should have the power to promulgate any rule that might promote health, including the prevention of multifactorial chronic diseases. There is a legitimate question here about how to define the jurisdiction of a health agency so that it is distinct from a legislative body and still has enough flexibility to respond to contemporary threats to health. This is not a simple task. If the Court of Appeals can craft such a definition, it will do us a great service.
 Matter of N. Y. Statewide Coalition of Hispanic Chambers of Commerce v. The N. Y. City Dept. of Health & Mental Hygiene, APL 2013-00291.
 Wendy K. Mariner & George J. Annas, "Sugary Drinks" and Obesity, 369(7) New Engl. J. Med. 680 (Aug. 15, 2013).
 New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep’t of Health and Mental Hygiene, 110 App. Div. 3d 1, 970 N.Y.S.2d 200 (N.Y. Sup. Ct. App. Div. 1st Dep’t 2013).
 Daniel Wiessner, City Seeks to Reinstate Large Soda Ban, Reuters, June 4, 2014, www.reuters.com/article/2014/06/04/us-new-york-sodaban-reinstate-idUSKBN0EF2F620140604.
 Michael Howard Saul, New York City Soda Ban Fate Weighed, Wall Street Journal, June 4, 2014, http://online.wsj.com/articles/new-york-city-soda-ban-fate-weighed-1401931286.
 Glenn Blain, New York City’s Soda Ban Bubbles Up to the Highest Court – Updated, New York Daily News, Daily Politics Blog, June 4, 2014, www.nydailynews.com/blogs/dailypolitics/new-york-city-soda-ban-bubbles-state-highest-court-blog-entry-1.1817197.