BY JORDAN SHAW — In what the New York Times called an “unusually critical” opinion, a New York judge recently struck down the ever-controversial New York City Soda Ban. The ban, which stated that “sugary beverages” of more than sixteen ounces could not be sold at NYC food-service establishments, and, restaurants with “self-serve” soda fountains, could not provide cups larger than sixteen ounces (though there was no ban on refills), was hastily labeled arbitrary and capricious.
The case primarily involved the application of Boreali v. Axelrod, a case from 1987, to the soda ban. In Boreali, the NYC Public Health Counsel “promulgated a comprehensive code to govern tobacco smoking in areas that are open to the public.” Like the soda ban case, the court in Boreali conceded that the NY legislature had given the Public Health Counsel the authority to regulate in the area of public health.
However, it highlighted the distinction between a legislative and an administrative body with delegated duties such as the Public Health Counsel. The court held that because the Public Health Counsel was not a legislative body, its power was limited in scope, despite any legislative grant of power. Essentially, the issue was one of separation of powers. The court in Boreali based its decision on four criteria:
(1) Whether the challenged regulation is based upon concerns not related to the stated purpose of the regulation, i.e.is the regulation based on other factors such as economic, political, or social concerns?
(2) Was the regulation created on a clean slate, thereby creating its own set of rules without the benefit of legislative guidance?
(3) Did the regulation intrude upon ongoing legislative debate?
(4) Did the regulation require the exercise of expertise or technical competence on behalf of the body passing the legislation?
The soda ban once again raises a dispute over the bounds of the legislature’s grant of power to the Public Health Counsel. And, despite emphatic resistance from the Public Health Counsel, the soda ban court decided that the test laid out in Boreali did apply to the NYC soda ban, and that the ban failed. The ban, which exempted soymilk products but covered almond, hemp and rice milk, exempted the ever-popular 7-11 “big gulp” because of an “understanding” with the Health Department, and exempted establishments that sold food for family consumption, was held to be based on factors outside the stated purpose.
Further, the court portrayed the soda ban as an unprecedented rule with little to no legislative guidance, causing it to fall into the prohibited “clean slate” category of prong two; it has never been within the power of the Public Health Counsel to ban an item “under the guise of ‘controlling chronic disease.’” The court held as to the third prong, that the soda ban was squarely within the jurisdiction of the legislature and there was no “rational argument purporting legislative inaction” in this area. As to the fourth prong, the court held that the scientific nature of the ban required more expertise than existed. The ban failed all four prongs of the Boreali test, and therefore was struck down.
However this may not be the last “straw” for the “drink” regulation. New York’s Mayor Bloomberg, the original proponent of the ban, vows to crack a new can and keep things fizzy with an appeal of what he believes to be an incorrect ruling.