When
a judge struck down the New York City Board of Health's partial ban on
selling “sugary drinks” in containers of more than 16 fluid ounces, the
reaction was swift. The Portion Cap Rule was widely viewed as a
signature accomplishment of Mayor Michael Bloomberg's third term as the
“public health mayor,” and he vowed to appeal, saying, “I've got to
defend my children, and yours, and do what's right to save lives.
Obesity kills.”
1
But the question before the judge was not about the health risks posed
by obesity or even the relationship between obesity and access to large
cups of sugary drinks; it was whether the city's Board of Health (part
of the New York City Department of Health and Mental Hygiene) had the
legal authority to restrict the serving size of such drinks.
Written
in the mayor's office, the Portion Cap Rule was adopted by the board on
an 8-to-0 vote with one abstention in September 2012 and was almost
immediately challenged in court. Judge Milton A. Tingling heard the case
and wrote a 36-page opinion striking down the rule.
2
There was no dispute that obesity is a serious problem; the only issue
considered by the judge was whether the board has the power to adopt the
rule. The substance of the rule is that “A food service establishment
may not sell, offer, or provide a sugary drink in a cup or container
that is able to contain more than 16 fluid ounces.” A “sugary drink” is
defined as a nonalcoholic drink that is “sweetened by the manufacturer
or establishment with sugar or another caloric sweetener; has greater
than 25 calories per 8 fluid ounces of beverage; and does not contain
more than 50 percent of milk . . . by volume.”
Legislatures make
policy, and administrative agencies carry out the policy made by the
legislature. The New York City Board of Health is an administrative
agency, which can do only what it is authorized to do by legislation.
The threshold question was whether the board exceeded its authority “and
impermissibly trespassed on legislative jurisdiction.”
2
The judge relied heavily on a 1987 case involving a successful
challenge to the state Public Health Council's anti–indoor-smoking
rules.
3
In that case, the Court of Appeals (the highest court in New York
State) examined “the difficult-to-define line between administrative
rule-making and legislative policy-making.” Four “coalescing
circumstances” persuaded the Court of Appeals that the state
administrative agency had crossed the line in that case. The 1987 rules
prohibited smoking in a “wide variety of indoor areas that are open to
the public” but expressly excluded many venues, including restaurants
with fewer than 50 seats, conventions, trade shows, bars, and hotel
rooms. The Court of Appeals determined that those rules were based more
on economic and social concerns than on public health matters, were
written on a “clean slate” rather than simply filling in regulatory gaps
left to the agency by the legislature, involved a matter on which the
legislature had repeatedly tried and failed to reach agreement, and were
developed without the exercise of any special public health expertise.
3
Judge
Tingling found the indoor-smoking decision to be a controlling
precedent in the Portion Cap Rule case. He examined the “coalescing
circumstances” to determine whether New York City's board had exceeded
its administrative authority. Tingling found first that, like the
indoor-smoking rule, the regulation was “laden with exceptions based on
economic and political concerns,” which are outside the Board of
Health's purview. Next, he concluded that the powers granted to the
health department by the New York City Charter (from its origin in 1730
through more than a dozen amendments to date) did not grant the board
“the authority to limit or ban a legal item under the guise of
`controlling chronic disease.'”
2
Third, the judge found that that city's legislature, the New York City
Council, had not passed any laws addressing the subject matter. The
judge's bottom line is that the health department violated the
separation-of-powers doctrine by exceeding its authority as an
administrative agency and acting like a legislature. Accepting the
city's arguments would, the judge concluded, “create an administrative
Leviathan” that would give the Board of Health “authority to define,
create, mandate and enforce [rules] limited only by its own
imagination.”
2
The
judge also adopted a separate basis for striking down the Portion Cap
Rule, determining that it was arbitrary and capricious because it does
not apply to “all food establishments in the City, it excludes other
beverages that have significantly higher concentrations of sugar
sweeteners . . . on suspect grounds,” and it has many loopholes — for
instance, it imposes no limitations on refills, which defeats its
purpose.
2
The
rule and the opinion raise several issues. First, the city's health
department has taken other actions without direct authorization by the
city council that could now be challenged. For example, in 2005, the
Board of Health required laboratories to report to the department the
names, dates of birth, addresses, physicians, and blood-sugar levels of
people with type 2 diabetes — without patient consent.
4
Second,
the judge's conclusion that the legislative branch is the proper branch
to make public health policy is correct. Both the New York City Council
and the New York State legislature have the authority to regulate the
sale of soda in large containers and to grant this authority to the city
or state health department. Should either legislative body do so, it is
much less likely that a court would overturn the Portion Cap Rule as
arbitrary and capricious. On the other hand, the rule has been widely
ridiculed, which makes its enactment by elected officials highly
unlikely. Jon Stewart probably expressed a widespread public sentiment
when he joked that he loved the rule because “it combines the draconian
government overreach people love with the probable lack of results they
expect.”
Third, there are reasonable alternatives to the Portion
Cap Rule, such as higher taxes on all sales of sodas. Higher prices
often discourage consumption, as has been the case with cigarettes. Such
taxes tend to be regressive, however, with disproportionate effects on
lower-income people, who in this case could not afford to buy fancy
bottled water or juice drinks. That may be one reason why some New York
communities oppose such taxes.
Some alternatives, however, are not reasonable — in particular, the current proposals to shame people who are overweight.
5
Such shaming amounts to treating a health risk, whose development may
be involuntary, as a moral failure. Any public policy entailing overt
discrimination based on physical appearance is simply wrong. People who
are obese know it; making them feel worse about themselves encourages
bullying, another public health problem, and helps no one.
Perhaps
the most important lesson is old news: economics often drives health
policy. New York City's efforts to reduce obesity grew with its desire
to control its health care costs for its residents, a disproportionate
share of whom are obese or have diabetes. Meanwhile, large corporations
continue to use their influence and money to derail public health
measures that could reduce their profits. Although the general public
shares the goals of public health, many people remain skeptical of
government's choice of means for achieving those goals. Agencies that
overstep their bounds or adopt rules that are intrusive or just plain
silly invite backlash, which can make effective public health regulation
impossible. They make fools of themselves and heroes of the opponents
of public health.
1 Grynbaum MM. Court halts ban on large sodas in New York City. New York Times. March 12, 2013:A1.
2 New York Statewide Coalition
of Hispanic Chambers of Commerce v. New York City Dept. of Health and
Mental Hygiene, No. 653584/12 (N.Y. Sup. Ct., N.Y. Cty., Mar. 11, 2013).
3 Boreali v. Axelrod, 71 N.Y.2d 1, 517 N.E.2d 1350 (1987).
4 Mariner WK. Medicine and public health: crossing legal boundaries. J Health Care Law Policy 2007;10:121-151
5 Callahan D. Obesity: chasing an elusive epidemic. Hastings Cent Rep 2013;43:34-40
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