Does New York's Board of Health Really Have the Authority to Regulate People's Diets?


On Friday five trade groups and a labor union filed a lawsuit arguing that the New York City Board of Health exceeded its legal authority when it approved Mayor Michael Bloomberg's restrictions on beverage servings. The drink regulations, which are scheduled to take effect in March, set a maximum size of 16 ounces for most sugar-sweetened beverages sold by restaurants, food carts, movie theaters, and stadium concession stands. The groups challenging the regulations, which include the National Restaurant Association and the American Beverage Association, say the limits amount to legislation improperly passed by an administrative agency:

The City Council knows how to legislate; it has considered legislation on obesity and nutrition; and it has repeatedly rejected proposals to address those issues by targeting certain beverages. The Board of Health's decision nonetheless to ban certain sizes of sweetened beverages in certain outlets, imposed by executive fiat, usurps the role of the City Council, violating core principles of democratic government and ignoring the rights of the people of New York City to make their own choices.

The board of health cites various provisions of the New York City Charter to justify its soda ceiling, the broadest of which authorizes the Department of Health and Mental Hygiene to "supervise and regulate the food and drug supply of the city." The plaintiffs argue that "none of these sections of the New York Charter authorizes Defendants to go beyond their administrative role and engage in the unprecedented act of policy-making at issue here." They cite a 1987 decision in which the New York Court of Appeals rejected an attempt by the State Public Health Council to ban smoking in public places without explicit legislative authority. Like the smoking ban, they say, the beverage policy creates a "comprehensive set of rules without benefit of legislative guidance," embodies an approach that has been repeatedly rejected by the legislature, is not the product of "any special expertise or technical competence," and "is laden with arbitrary exceptions that have no connection to the purported purpose for the rule." 

Those "arbitrary exceptions," according to the lawsuit, also violate the New York Civil Practice Law and Rules, which prohibit "arbitrary and capricious" regulations. Bllomberg's big beverage ban exempts fruit juices, milk-based drinks, and alcoholic beverages, all of which typically have more calories per ounce than sugar-sweetened soda, as well as drinks sold by grocery or convenience stores. The plaintiffs highlight some of the policy's oddities:

Delis and hotdog stands are barred from selling a 20-ounce lemonade, but the 7-Eleven a few feet away remains free to sell Big Gulps….

Fans at a ballgame will be able to purchase 20-ounce beers, but not 20-ounce sodas. Diners will be permitted to sell large chocolate milkshakes (about 800 calories each), but will be fined if they sell a 20-ounce cola (only about 240 calories)….

The Ban allows the sale of multiple 16-ounce beverages, allows unlimited free refills, and allows customers to add as much sugar as they want to any beverage after it is purchased, but it prohibits covered businesses with self-serve fountain drinks from stocking any cups larger than 16 ounces even for use with water, diet soda, or any other drink that has zero calories.

The plaintiffs argue that New York City's 2006 ban on trans fats in food sold by bakeries and restaurants does not represent a legal precedent for the soft drink scheme, because "the City Council enacted ratifying legislation by a 47-1 voting margin that expressly 'incorporate[d] the ban on artificial trans fat into the Administrative Code,' thus providing express legislative approval for [the health department's] actions." By contrast, the city council has never approved the big beverage ban, and 17 members have declared their opposition to it.

It would be astonishing if the city council had indeed authorized the board of health to micromanage New Yorkers' diets in the way implied by the legal justification for the beverage regulations. As I've noted, some members of the board complained that Bloomberg's plan did not go far enough—not just because of all the exceptions but because it does not address calorie-dense foods such as hamburgers, French fries, and movie theater popcorn. If the authority to "supervise and regulate the food and drug supply" includes the power to fight obesity by limiting soda sizes, it also includes the power to fight obesity by limiting portions of these and other foods. Furthermore, although Bloomberg chose to exempt grocery and convenience stores from his big beverage ban, he need not have done so. The health department "could exercise jurisdiction over grocery stores, convenience stores, and the like," the plaintiffs argue, "and already does" when it comes to the sale of tobacco products. The implication is that the department, by restricting what stores may sell, could seek to limit what people consume at home as well as in restaurants.

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  1. …the broadest of which authorizes the Department of Health and Mental Hygiene to “supervise and regulate the food and drug supply of the city.”

    The Health Department should regulate the food supply up to the top of a climbing rope or at least a long set of stairs. Make the fatties work a little to get to their mandated tofu bars.

    1. An argument firmly planted in the idea that calories in – calories out really works. But reducing someone’s diet by 3500 Calories per week won’t actually make him lose one pound of fat per week.
      But, but, but… Physics! First Law of Thermodynamics! They must be cheating on their diets! Yes, I know, but it also doesn’t work on cows or pigs or lab rats. Unless you think you’ve got Pinkie and the Brain escaping that cage every night, you got to tell me why you think it should still apply to people.

      1. Oh, it works in the sense of being true. That is, the calorimetry must work when everything’s accounted for. It’s just that it doesn’t have much practical value in that you can’t change anything on the ledger without affecting other things (i.e. eating less affects energy output), and in that it doesn’t account for how much someone desires to consume.

      2. Also, it’s been pointed out how amazingly close to 0 long-term energy balance is in adults of many species. Even if a human gains 2-3 lbs. a year as I did for decades as an adult (and is close to avg. now in the USA), that’s a tiny percentage on an enormous thruput, and remarkably resilient vs. short term departures (as I gained back what I lost from a month of appetite reduction via tramadol rx for shingles a few mos. ago). Yet nobody knows how we do it. We know the factors adjusting water balance very well, but not those adjusting appetite.

  2. “Department of Health and Mental Hygiene”

    That is the scariest dept name I have ever heard. Jesus. Fucking. Christ.
    Are the people of New York insane?

    1. My jaw dropped at that one. I don’t even think we have that in California and that’s saying something

      1. Yeah, all it’s missing is “und zhe Little Mud Peoples,” huh? People forget that Naziism was once quite accepted in this country. That’s one of the reasons they have so much trouble recognizing it coming back.

        So, how long before we have concentration camps for the Fatties?

      2. Most states do. You just don’t know about it. Bum bum bum…

    2. Sounds like something from the original progressive era.

      1. This is what tony actually believes in.

      2. I’m pretty sure the Mental Hygiene part’s a little later than that. I’m guessing it’s from between 1930 y 1965. Thos. Szasz’s work was in large measure a rxn to the Mental Health-Mental Hygiene Movement of that era, which picked up steam in its last 10-15 yrs. of existence. That also engendered a resistance, of which Tom was maybe the most salient point, that was associated mostly with the Birchers at 1st, and then when it started to rapidly diffuse into “normal” circles, the movement fell apart, leaving behind just names like this dept.’s as its legacy. I bet Wikipedia has an entry on it. I remember the 5-sec. TV PSAs for it that consisted of a cartoon of a bell and a ringing sound with some text. Apparently that bell was the logo of the Mental Health Ass’n.

        1. Wikipedia’s entry for “Mental Hygiene Movement” unfortunately forwards to “Social Hygiene Movement”. I suppose the former could arguably have been said to have been an extension of the latter (which would fit the “original progessive era” origin postulated above), but you’d lose that argument when clearly it overlaps the later Mental Health Movement more.

          The National Mental Health Ass’n (recently renamed Mental Health America) has that bell as a logo because it harks to a real bell they had made from melting down chains used formerly to chain insane inmates. The idea was that both that the mentally ill had been freed from ill rx, and that they were freeing the mentally ill by conquering mental illness. All I know is that bell ringing card on the TV scared me as a child, even though I didn’t much understand what it was about. They still have the actual bell, too.

  3. I am rather startled to see a regulatory agency usurping power to itself?! A grave accusation against the selfless (and underpaid, whilst overworked) civil servants of New York City.

    I will be paying strict attention to see if anything else like could possibly be occurring anywhere else in these Untied States. Gosh, I should hope not!

  4. Do they have the authority? No. Do they have the power? Yes.

    Does anybody give a shit if they have the authority as long as they have the power? At this point, I think the Constitution really is just a goddamn piece of paper and what we are seeing is the beginnings of a free-for-all power struggle amongst the native American criminal class. It ain’t ever gonna get any better, the trainwreck done set sail over the cliff already on this one.

  5. The drink regulations, which are scheduled to take effect in March…

    What? March? I thought they took place last June. What kind of dictator has to wait nine months to get anything done?

  6. “prohibit “arbitrary and capricious” regulations.”

    Should be in the constitution. The confederate constitution had something along those lines, although they ignored it.

  7. Fuck you, that’s why!

  8. Let’s start depicting Mayor Bloomberg as he really is: wearing an apron.

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