Remembering the soda portion-cap rule

While overshadowed by the end of the U.S. Supreme Court term and other news, the death of Mayor Bloomberg’s groundbreaking soda portion-cap rule before the New York Court of Appeals on June 26 merits critical attention.  I have written about the rule extensively in prior posts and a law review article.  Below the jump, I’ll focus on two important aspects of the court’s decision:  1) the application of the state constitutional law precedent of Boreali v. Axelrod (addressed in detail in the amicus brief I joined), which holds that when an agency makes “policy” it unconstitutionally encroaches upon the legislative branch, and 2) the court’s rejection of the City’s argument that the Board of Health exercises “legislative power.”

In applying Boreali, Judge Eugene Pigott’s majority opinion repeatedly stressed that the soda rule interferes with the “autonomy” of consumers.  Judge Pigott weakly distinguished the Board of Health’s myriad other (presumably legal) actions over the years to protect the public health by declaring that the choices the Board made in those instances were “not very difficult or complex,” and involved “value judgments” that “are widely shared.”  Presumably, Judge Pigott was cognizant of the Board of Health’s prior decisions to fluoridate water and ban ferrets, which were hardly uncontroversial.  Nonetheless, because the soda rule is controversial, the majority concludes that it amounts to “policymaking” of the kind forbidden by Boreali.  Needless to say, whether a rule may provoke disagreement is hardly a yardstick for measuring its legality.  What metric will judges use to decide whether the “values” inherent in a public health rule are “widely shared”?  Just as questionable is the majority’s and concurrence’s view of the world as one in which consumers “autonomously” and “voluntarily” choose to consume 32 ounces of soda in one sitting.  This perception wholly ignores ample social science research demonstrating that context, including portion size, drastically influences how much persons drink or eat.  Understanding this research, the fast-food and soda companies have increased their package sizes dramatically in recent decades to boost sales and consumption.  The portion-cap rule was a modest response to this trend, seeking to make the healthier choice (less soda) the easier choice.  Sure, it interferes with “autonomy” in the same way a minimum wage law limits my “freedom” to agree to earn $4 an hour, but this should not affect the rule’s legality.  The two-judge dissent written by Judge Susan Read (and joined by Chief Judge Jonathan Lippman) emphatically rejected the majority’s reasoning on this point.

Second, the parties argued extensively, in the papers and at oral argument, over whether the Board of Health possesses sole “legislative authority” in the field of public health.  In its final appeal, the City (to be more specific, the City’s Law Department, which is controlled by the mayor) most strongly pressed the argument it had only hinted at below:  the City Council may not overturn Board rules concerning public health.  In other words, because the Board exercises authority directly delegated by the state legislature, only the state legislature may overrule its regulations.  This argument is unusual and bold, to say the least, and I feared that it only fed into plaintiffs’ claims that the rule amounted to executive overreaching.  Moreover, the City need not have raised this argument.  The City Council had not passed an ordinance conflicting with the regulation.  The City could have simply argued that the Board’s rule was legitimate agency action that the Council could overrule if it so chose.  Such reasoning might have provided a more palatable option to the state judiciary:  uphold the rule, and the ball is now in the City Council’s (and Mayor’s) court to negotiate regarding whether to overturn the rule.  Instead, the City gave the Court of Appeals an “all-or-nothing” choice:  affirm our regulation and the City Council cannot even touch the rule.

The Court of Appeals hammered the final nail into the coffin of the City’s soda rule.  In theory, the City Council (or the state legislature) could revive the rule by enacting it into law, but the council, unlike Mayor De Blasio, opposes the rule, so the chance for experimenting with this groundbreaking approach to curbing obesity and dental disease will have to wait for some other jurisdiction to act.  Meanwhile, the serious public health problems the rule sought to address are not going away.

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About pdiller

Paul Diller is an associate professor at Willamette Law whose research focuses on local government, policy innovation, the police power, and related issues of state and federal constitutional law. His scholarly work has appeared in, among other journals, the Stanford Law Review, The University of Chicago Law Review, the Michigan Law Review, and the Georgetown Law Journal. In recent years, Diller has worked on local obesity prevention policy with a leading nonprofit public health organization. Diller graduated from the University of Michigan Law School and the University of Pennsylvania, both magna cum laude. In his spare time, he enjoys baseball, snowboarding, drinking coffee, and spending time with his family.

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