by Marion Nestle
Jun 26 2014

NY State Appeals Court says No to Portion Cap Rule

The New York State Court of Appeals issued a decision this morning on the Portion Cap Rule:

We hold that the New York City Board of Health, in adopting the “Sugary Drinks Portion Cap Rule”, exceeded the scope of its regulatory authority. By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York.

Although the decision applies to the Portion Cap Rule, it has a much larger meaning.

The ruling means the Court does not accept the idea that health departments have the right to set health policy for city residents.  I suspect we will be seeing the implications of this ruling for a long time to come.

The city health commissioner, Mary Bassett, issued a brief statement:

Today’s ruling does not change the fact that sugary drink consumption is a key driver of the obesity epidemic, and we will continue to look for ways to stem the twin epidemics of obesity and type 2 diabetes by seeking to limit the pernicious effects of aggressive and predatory marketing of sugary drinks and unhealthy foods.

This doesn’t sound like the city will appeal to the U.S. Supreme Court, but maybe it’s too early to say.

I will post additional comments later, as they come in.  Stay tuned.


As I just told a reporter, ”

The key issue here is whether health departments have the right to set policy to protect the health of citizens under their jurisdiction.  This court says no, but this seems precedent-setting. The medical community most definitely should support measures to improve the environment of food choice.  Changing the behavior of individuals is extremely difficult and rarely successful; it works much better to improve the environment so it’s easier for individuals to make healthier choices.

On the court decision: The vote was 4 to 2, with one abstention.   Here’s a quotation from Judge Susan Read’s dissenting opinion:

What petitioners have truly asked the courts to do is to strike down an unpopular regulation, not an illegal one…To sum up, if the People of the City or State of New York are uncomfortable with the expansive powers first bestowed by the New York State Legislature on the New York City Board of Health over 150 years ago, they have every right and ability to call on their elected representatives to effect change. This Court, however, does not…The majority fails to advance any persuasive argument why the judiciary should step into the middle of a debate over public health policy and prohibit the Board from implementing a measure designed to reduce chronic health risks associated with sugary beverages just because the Council has not chosen to act in this area.

The New York Times also quotes from this dissent:

In a blistering dissent of the opinion, Judge Susan P. Read wrote that the ruling ignored decades of precedent in which the Board of Health was given broad purview to address public health matters, such as regulating the city’s water supply and banning the use of lead paint in homes.  The opinion, Judge Read wrote, “misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century.”  One justice in the majority, Judge Sheila Abdus-Salaam, seemed to share those concerns, writing in a separate concurrence that “no one should read today’s decision too broadly.”

It’s always amusing to hear what the Washington Legal Foundation, which filed an amicus brief supporting the soda industry’s position, has to say:

New York City’s misguided soda ban was arbitrary, paternalistic, and profoundly inconsistent with separation-of-powers principles. The Court’s decision to strike it down vindicates fundamental constitutional values, protects consumer freedom, and encourages sound regulatory policies.

Jane Delgado of the National Alliance for Hispanic Health’s issued a statement:

 We are deeply disappointed that the court today limited the power of the NYC Board of Health to
act on behalf of the health of New Yorkers… The portion cap rule is the right policy for New York City and communities throughout the nation facing the rise of chronic diseases, such as diabetes.

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  • It does make sense — elected officials should be deciding on laws. In Canada, elected officials used to sit on our Boards of Health, and recommendations we made were then taken to the City/Province for bylaws and legislation. Not sure how the governing works in US cities, but laws should be set by elected officials. Not that elected officials know more about health…but that’s the job the Board of Health needs to do – convince/lobby the lawmakers. PS. I am 100% in favour of portion caps. People who want more can buy more. It’s like buying gas, if you want more than you your car can handle, buy some jerry cans and fill them. Don’t just let your extra gas pour out of the gas tank. It’s not safe for you, or anyone else.

  • Vik Khanna

    “The ruling means the Court does not accept the idea that health departments have the right to set health policy for city residents.” — This statement alone conveys a striking level of ignorance. The decision means nothing of the kind. The decision says that the administrative agency exceeded its regulatory authority, meaning that it does not have statutory authority to issue the guideline. If the NYC Council sees fit to provide statutory authority then the debate and rule making process can begin anew.

    You do remember (and, I presume, respect, at least when things go your way) the chain of events in our democracy? Legislatures pass laws, executives sign them, and administrative agencies execute them. There was no enabling statute here in the Court’s view. What part of that do you find mysterious?

  • Vik Khanna

    The problem, of course, is that the regulatory body is not composed of elected officials. That would be the City Council, which passed no law allowing the regulatory agency to do what it did.

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  • Michael Bulger

    The City argued that the Legislature had previously empowered the Board of Health to pass regulations on behalf of public health. I believe the City Charter is what the administration pointed to as containing the mandate for the Board.

  • Michael Bulger

    In NYC, the Board of Health is appointed by an elected official – the Mayor. The legislature has previously passed laws that empower the Board of Health (and other administrative bodies such as the Board of Education, etc.) to set policies and regulations.

    That is what the Board of Health was doing in this case. It’s not reasonable to expect all of a large city’s policies to be brought to a vote in the legislature. There’s too much business. The issue of expertise is also pertinent. As you seem to acknowledge, the Board of Health has a greater level of expertise in public health than does the City Council.

  • Monica

    I can’t say I am completely surprised. After all, NYC is a very liberal state and banning anything is sure to create a disdain even if it is something as arbitrary to human rights as sugary beverages. I’m not one for limiting people’s freedom either but the option of a 24, 32, (or 64 +oz!) wouldn’t have been missed were it not introduced int eh first place. I’m tempted to ask, if banning outrageously large sugary drinks does not pass how long before the even BIGGER sizes come to the market. I can see it now: the “freedom” size…
    I have no issue with putting a cap on the size. No one is saying it’s not allowed to buy more than 1-16 oz beverage. So we will just have to find another way!

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  • Vik Khanna

    And two differents courts said that argument was too broad and wrongly applied because the agency’s powers do not spring from the City Charter, but from its authorizing legislation.

  • TR

    “Changing the behavior of individuals is extremely difficult and rarely successful; it works much better to improve the environment so it’s easier for individuals to make healthier choices.” That’s exactly the way to deal with 2 year olds. Are adults any less impulsive and shallow than a 2 year old? I wish I could wholeheartedly say yes.

  • Michael Bulger

    Neither of the courts were unanimous in the decisions. Several of the judges felt that this policy was within the scope of the Board of Health’s powers.

    Remember, the Charter itself is established and amended by the legislative branch and/or voter referendums. The Charter is the authorizing legislation.

  • Vik Khanna

    Our debate is moot. They lost. Back to the command-and-control drawing board.

  • AudreySilk

    Professor Nestle, you write, “Changing the behavior of individuals is extremely difficult and rarely successful; it works much better to improve the environment so it’s easier for individuals to make healthier choices.”

    I invite you to explain how it does not mean the same thing as “when individuals won’t heed our advice we impose measures that force them to live by our rules.” Easier for individuals to make healthier choices? No, what you hide beneath such verbiage are the real words “We will remove something so that they will HAVE NO choice.” To summarize, “Changing the behavior of individuals works much better under a tyranny.” Ya think?

    It’s unsurprisingly no different than when your colleague, Kelly Brownell, says, “Personal responsibility is an experiment that has failed.” An experiment?? It’s the foundation of our country!! In other words, our form of government is a failed experiment due, in his case, to free will! Our constitutional republic has often been referred to as an “experiment.” I have no doubt he makes that connection with that thinking.

    Renowned 19th century physician and educator, Thomas H. Huxley, stated the opinion of many when he professed, “It is far better for a man to go wrong in freedom than go right in chains.”

    So no thank you to your chains and your toxic (not improved) environment.

  • The point is, the soda wasn’t banned. Fast food companies were not allowed to use _cup sizes_ over a certain size. But people were more than welcome to buy a dozen cups of pop.

  • Legislatures pass laws, which are them implemented _as regulation_ by the bodies empowered to enforce the laws.

    This is exactly how government works.

  • Not quite.

    The city could take this to the Supreme Court. Or the Health Board could implement new regulations that are more in line with the judicial decisions.

  • You’re implying that the people are already operating under free will. They are not.

    They are under a constant barrage of ads convincing them to indulge in harmful behavior.

    Tell me, what sane person drinks 64 ounces of carbonated sugar water at a sitting, unless they’ve been told from a very young age that, “they deserve this today”?

    All the soda cup size limitation did, was make a point–the people could still go out and grab 64 ounces of carbonated sugar water and drink their way into an obese coma.

  • Legislatures and community councils pass broad laws, which are then converted into enforceable rules and regulations by the agencies empowered to enforce them.

    That is the way our government works.

  • Willie

    Ah, now we;re getting to the crux of it when you let slip “…what sane person…” So then, your real aim is to legislate and enforce against insanity with this sort of arbitrary and capricious authoritarian arm twisting? Why must you force yourselves upon the majority of us just because you believe you are smarter and perhaps “saner”. Actually you really are only more obsessive and sanctimonious. So, go ahead and take it to the Supreme Court. It would be a complete waste of their time but wasting time and resources seems to please you autocratic fools.

  • Willie

    You are being ridiculous, unless you plan to hide behind precedent recently set by Obama’s executive actions to blatantly alter standing laws and impose selective enforcement. This approach does seem to appeal to crusading liberal do-gooders. We just don’t agree with it, that’s all. Stick to the old tried and true method of law making an enforcement. Your ideas are no improvement on that.

  • AudreySilk

    Do you understand the concept of free will versus force of law? We can watch all the commercials we want. The ultimate choice is still up to — and ONLY up to — the individual. It could even be a “bad” decision but it’s still at the will of the autonomous. No one is taking what’s in the commercial and physically shoving it into anyone’s hands/mouth and demanding they eat/use it. Ultimately a person is FREE to say yes or no to it. YOU, on the other hand, are for exactly what you despise — creating a scenario that no one can say no to! Your product — your view — is literally forced down throats.

    Using your logic — if you were consistent and not just in the throes of particular “public health” hysterias with cherry-picked pet peeves — then everyone would have their homes filled with thousands of things because no commercial is irresistible. They all promise beauty/attractiveness or sexiness or comfort or envy of your neighbors, etc.! Doesn’t the same barrage of those things convince people as well? Subjective “harmfulness” or not, it’s still the same method of advertising for every single product or service. And yet our homes are NOT filled to the brim with all form of merchandise.

    Then there’s no good argument without the “for the children” card (“from a very young age”), is there? Except the lesson you peddle to the children is far more dangerous: If you don’t like something or disagree — CENSOR IT. You want to raise intolerants who can’t think for themselves. No, don’t listen to the ads you say, instead you must “do as **I** tell you.” Yeah, no control over their minds there, right? Who is really the enslaver? It does no good to contend this soda policy didn’t outright ban the ability to get 64 ozs. It’s still willful manipulation of the people. Additionally, we all know from history that once nanny gets its foot in the door it’s only a matter of time before the noose tightens.

    Do you know the KKK is allowed to march because to deny even that hateful group their fundamental freedom is to threaten everyone’s freedom? And like the ads, you are free to watch and listen or walk away from their events.

    Finally, hmmmm, how did YOU manage to not suffer from the “barrage of ads”? According to you it’s inescapable for anyone. Must be that you’re not like “everyone else.” You’re part of a small handful of people who must be special, right? So special that only you were not taken in by ads to be able to tell everyone else they’re not thinking for themselves. And only those who buy/drink much soda MUST HAVE not done so by the same free will possessed by those who don’t. That’s what you’re selling and my free will ain’t buying it.

  • I’m not sure how you managed to leave school without taking a civics class, but this is how our local, state, and federal governments work.

    Voted representatives set broad laws, the executive branch oversees the implementation of the laws, which are then redefined as specific rules and regulations enforced by delegated agencies.

    How else do you think we would function? Disagree if you will, but don’t celebrate your own ignorance.

  • Vik Khanna

    You and Mr. Bulger might actually try to read Court decisions before you prattle on about something you obviously don’t get.

    The very first paragraph of the NYS Court of Appeals decision: “We hold that the New York City Board of Health, in adopting the “Sugary Drinks Portion Cap Rule”, exceeded the scope of its regulatory authority. By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York.”

    How much more clear do you need it to be?

  • And the third check in government is the judicial branch, which determines if a regulation or rule exceeds the power given to the agency enforcing the law.