Administrative Law - Separation of Powers - New York Court of Appeals Affirms Invalidation of Soda-Portion Cap

Harvard Law Review, March 2015 | Go to article overview

Administrative Law - Separation of Powers - New York Court of Appeals Affirms Invalidation of Soda-Portion Cap


ADMINISTRATIVE LAW--SEPARATION OF POWERS--NEW YORK COURT OF APPEALS AFFIRMS INVALIDATION OF SODA-PORTION CAP.--New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, 16 N.E.3d 538 (N.Y. 2014).

Over the last decade, New York City has pioneered a number of efforts to combat rising obesity rates, including banning trans fats and requiring restaurants to post calorie counts. Perhaps none of these efforts has generated as much controversy, however, as the 2012 passage of a regulation limiting portions of certain sugary drinks to no more than sixteen ounces. Last summer, in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, (1) the New York Court of Appeals affirmed lower courts' invalidation of that rule. In finding that the city's Board of Health (the "Board") had usurped legislative authority, the court invoked New York's seminal separation of powers precedent, Boreali v. Axelrod, (2) which held that a health agency had impermissibly exercised legislative power in part because it had conducted a cost-benefit analysis--and thus weighed considerations unrelated to its mandate of protecting public health--without legislative guidance or authorization. (3) The Coalition court clarified that agencies may consider factors outside their immediate area of expertise; such considerations become problematic, however, when they involve particularly significant value judgments. (4) The Coalition court's approach thus resembles the federal "major questions" doctrine, under which courts require a clear statement from the legislature to bring issues of great "economic and political significance" (5) within an agency's realm. If significance is to be dispositive in New York's separation of powers framework, adopting an approach that explicitly focuses on it would simplify the doctrine and reflect the inevitability of cost-benefit analysis in the modern regulatory state.

In May 2012, New York City's then-mayor, Michael Bloomberg, announced a proposed regulation that would bar food service establishments from selling certain sugary drinks in containers larger than sixteen ounces (the "Rule"). (6) The Rule was designed to reduce the city's obesity rate. (7) In September 2012, after receiving more than 38,000 public comments on the subject, (8) the Board voted to adopt the Rule. (9)

Six not-for-profit and labor organizations challenged the validity of the Rule. (10) Justice Tingling of the Supreme Court (a state trial court) invalidated it, (11) concluding that the Board had "trespassed on legislative jurisdiction." (12) He found that the Board had violated the separation of powers doctrine laid out in Boreali, (13) which had looked to four "coalescing circumstances" to find that New York's Public Health Council had overstepped its authority in regulating smoking. (14) Those four circumstances, deemed "factors" in subsequent cases, (15) were that the agency: (1) based its decision partly on economic and social concerns--areas outside its realm of expertise--without legislative instruction regarding whether or how to weigh such factors; (16) (2) regulated "on a clean slate" instead of merely filling in the details of legislation; (3) acted in an area in which the legislature had tried and failed to agree; and (4) reached a decision for which the agency's specific expertise was not needed. (17) Finding that the first three factors weighed against the Board, (18) Justice Tingling invalidated the Rule. (19)

The Appellate Division unanimously affirmed. (20) Considering the first Boreali factor, Justice Renwick, writing for the court, found that the Board had weighed concerns beyond its field of expertise, including behavioral economics concepts. (21) Turning to the second factor, the court determined that although the City Charter granted the Board authority over "all matters affecting health in the city," (22) the Board could engage only in "interstitial rule making designed to protect the public from inherently harmful and inimical matters"--a category that did not apply to soda consumption. …

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