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.