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Tuesday, July 30, 2013

City's Ban on Soft Drinks Held Unconstitutional

Last year, the City of New York enacted a ban on the sale of soft drinks (larger than 16 ounces) in restaurants, movie theaters, sports arenas, and other public places.  Other places such as convenience stores and grocers were exempt from the ban.  The lower court had struck down the ban, and the City appealed.
Today, an appellate court ruled that the New York soft drink ban is unconstitutional.  First, the court held that City's Board of Health "failed to act within the bounds of its lawfully delegated authority" in enacting the ban.  The court further found that the Board of Health encroached on the City Council's authority in acting too much like a legislature when it created the limit, and violated the state's principle of separation of powers. The court also stated that the rules were aimed at political or economic considerations, rather than health concerns, and that similar policies had been considered, and rejected, by both the City Council and the state legislature.  Even if the Board of Health had adequate authority, it failed to conduct adequate studies to justify imposing the portion control rules on soft drinks. 
As more and more municipalities enact health-related policies and regulations such as New York's soft drink ban and restrictions on the sale of junk food and fast food restaurants, it's likely that more courts will have to weigh in on the authority and constitutionality of these type of policies. Municipalities will need to consider first whether they have the authority to adopt a particular policy, second, whether there is sufficient studies to support the particular restriction (similar to "secondary effects" studies for adult business regulations) and third, whether the policy is even-handed in scope so similar activities, conduct, or businesses are treated in a like manner.


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