Chicago bans plastic bags and microbeads in personal care products. San Francisco bans the sale of plastic water bottles on public property. New York City banned large sodas (or pop, if you are around here) by enacting the "Sugary Drinks Portion Cap Rule," which would become effective in 2013. That rule prohibits food service establishments from selling any sugary drink in a cup or container larger than 16 ounces. The new rule was immediately challenged by labor groups and other organizations who claimed that the rule was "arbitrary and capricious" and exceeded the Board of Health's regulatory authority.
The case made its way to the state's high court, which issued a ruling last week invalidating the rule. In the Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health & Hygiene. The court of appeals determined that the Board of Health exceeded its regulatory authority by enacting the soda ban. Specifically, the court found that the ban was in the nature of legislative policy-making rather than the carrying out of preexisting legislative policy. As a result, the soda ban rule was found invalid, and the Department of Health was enjoined from enforcing it.
The opinion contains a lengthy dissenting opinion that would have upheld the soda ban rule based on the Department's inherent authority to regulate the public health in the City. The dissent acknowledged that in enacting the ban, the Board identified a "complicated threat to the health of City residents with any interrelated causes; i.e., obesity" that required the Department to enact regulations that would "combat this threat."
The rationale for the court invalidating the soda ban had nothing to do with the legitimacy or appropriateness of the ban itself, but with the agency's authority to enact it. It is entirely possible that the outcome of this case would have been different had the New York City Council enacted an ordinance adopting the soda ban (i.e., legislative action) rather than one of its agencies establishing the ban through an administrative policy.
Post Authored by Julie Tappendorf, Ancel Glink