NY appellate court rules 5-0 against Bloomberg soda ban

The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of  In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic Chambers opinion begins on page 22, following two other opinions released the same day.)

In New York State, the trial courts of general jurisdiction are the Supreme Court. The intermediate courts of appeal are the Appellate Division, which are divided into four geographic Departments, similar to the U.S. Circuit Courts of Appeal. The highest court is the Court of Appeals. Thus, Mayor Bloomberg has the option of trying to bring the case to the Court of Appeals.

The Appellate Division’s decision is quite straightforward: “[T]he Board [of Health] did not bring any scientific or health expertise to bear in creating the Portion Cap Rule. Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes.” If the Board’s ban on the sale of sodas larger than 16 ounces were actually a health rule (similar, for example, to a ban on the sale of infected meat), there would not be so many exemptions for certain types of vendors.

The Appellate Division applied the four-part separation of powers test from Boreali v Axelrod, 71 NY2d 1 (1989). The Appellate Division summarized the four Boreali factors:

First, Boreali found the PHC [Public Health Council] had engaged in the balancing of competing concerns of public health and economic costs, “acting solely on [its] own ideas of sound public policy”. Second, the PHC did not engage in the “interstitial” rule making typical of administrative agencies, but had instead written “on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance”. Third, the PHC’s regulations concerned “an area in which the legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions”. Boreali found that the  separation of powers principles mandate that elected legislators rather than appointed administrators “resolve difficult social problems by making choices among competing ends”. Fourth, Boreali found that the agency had overstepped its bounds because the development of the regulations did not require expertise in the field of health.

The Appellate Division then examined Bloomberg’s Portion Cap Rule in light of the four Boreali factors, and found that all four factors showed the Portion Cap Rule to be an unconstitutional usurpation of legislative power by Mayor Bloomberg and his Board of Health.

The Appellate Division explained that its opinion did not indicate that a soda limitation law enacted by a legislature would be unconstitutional. As the Court noted, when Bloomberg announced his intention the ban sodas, the NY City Council urged that the issue be brought before them, but the Mayor refused.

In sum, the Court enforced the most important Portion Cap of all: Michael Bloomberg may not consume power which exceeds the portion he has been allocated by the Constitution.

Lead plaintiffs in the case were The New York Statewide Coalition of Hispanic Chambers of Commerce and The New York Korean-American Grocers Association. Amici opposed to the soda ban included The New York State Conference of the National Association for the Advancement of Colored People, The Hispanic Federation, The U.S. Hispanic Chamber of Commerce, The Mexican American Grocers Association, The Chamber of Commerce of the United States of America, National Black Chamber of Commerce, and The National Federation of Independent Business.

Amici supporting the soda ban included Shape Up America!, American Public Health Association, Jennifer Pomeranz of the Rudd Center for Food Policy at Yale University, and Prof. Lawrence O. Gostin of the O’Neill Institute for National and Global Health Law at Georgetown University.

[Correction, added 7/31. An Appellate Division panel normally consists of five judges. However, only four judges participated in the Hispanic Chambers of Commerce decision.]