Nearly two years after the Big Apple adopted a controversial restriction on large sodas in an effort to combat obesity, New York’s highest court has permanently killed the “Portion Cap Rule."
New York City lawyers have exhausted their appeals. That’s good news for the
beverage and restaurant industries. They claimed in a 2012 lawsuit that the rule—the brainchild of former mayor Michael Bloomberg—would have imposed undue burdens and was arbitrary and capricious because it excluded a number of businesses.
Sixteen months ago, a state judge enjoined local officials from enforcing the restriction on sugary drinks, and two appeals courts in New York have upheld the ruling invalidating the city’s decision. The most recent
ruling by the New York State Court of Appeals comprised the final blow to the Portion Cap Rule.
“We are pleased that the lower courts’ decisions were upheld. It would have created an uneven playing field for thousands of
small businesses in the city and limited New Yorkers’
freedom of choice," said Chris Gindlesperger, a spokesman with the American Beverage Association. “With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on New Yorkers and families across the country."
New York City officials said the decision wouldn’t dissuade them from pursuing solutions to address obesity. "The June 26 ruling does not change the fact that sugary drink consumption is a key driver of the
obesity epidemic," Health Commissioner Mary Bassett said, “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."
Zachary Carter, New York City Law Department Corporation Counsel, echoed those remarks. “Given the magnitude of this epidemic, we have no doubt that the Board will continue to address the obesity crisis and the role of over-consumption of sugary drinks," he said.
Relying on a 1987 case that distinguished between legislative action and rulemaking, the New York State Court of Appeals found the health board exceeded its authority, encroaching on the powers of the City Council.
“An agency that adopts a regulation, such as the Portion Cap Rule or an outright prohibition of sugary beverages, that interferes with commonplace daily activities preferred by large numbers of people must necessarily wrestle with complex value judgments concerning personal autonomy and economics," Associate Justice Eugene Pigott wrote for the majority. “That is policy-making, not rule-making."
But in a dissenting opinion in which Chief Judge Jonathan Lippman concurred, Associate Justice Susan Read said the majority rendered the wrong decision because the health board had authority to impose the restriction on sugary drinks.
New York’s “legislature has entrusted the Board to act with a great deal of discretion, while also ensuring that it will address specified areas of concern, and has provided procedures for doing so," Read declared. “That the residents of New York City no longer count typhoid and dysentery among their chief health concerns is a sign that those scourges have been conquered, not a ground for preventing the Board from turning its attention to contemporary public health threats."
The majority’s ruling will most certainly not end the contemporary debate on how the United States should tackle an obesity epidemic compromising the health of millions of Americans and whether Congress, states and local governments should impose restrictions on fatty and sugary foods and beverages. In fact, California recently proposed a state law that would have required a warning label on sugar-sweetened beverages. But the bill recently
died after it failed to clear the California Committee on Health.
The conversation over the role of government in promoting nutrition could soon shift to Capitol Hill where Rep. Rosa DeLauro (D-Conn.)
intends to introduce a bill to tax sugar-laden beverages.
Expect vigorous opposition to such legislation from the beverage industry.
“If we want to get serious about obesity, it starts with education – not laws and regulation," said Gindlesperger of the American Beverage Association. “Politicians should focus on what matters most – education, jobs and the economy – and leave the grocery shopping to us. What you eat, drink and feed your family is your choice and not the government’s. People don’t support taxes and bans on common grocery items, like soft drinks. That’s why the public policy debate has moved on from taxes and bans and onto real solutions."
But DeLauro indicated the relatively inexpensive cost of soda is contributing to the overconsumption of sugar.
“Added sugar is pervasive and almost inescapable at the supermarket," she recently said. "And of course many times it is the sugary foods and drinks that are the easiest for families living on the edge of poverty to afford. When a two-liter cola is 99 cents and blueberries are over three dollars, something has gone very wrong."
