Local health agencies, the Bloomberg soda rule, and the ghost of Woodrow Wilson.

• Author: Diller, Paul A.
• Position: New York City Mayor Michael Bloomberg - 40th Anniversary Symposium

Introduction I. Cities' Records of Administrative Rulemaking in Public Health II. Local Agencies' Unique Doctrinal Footing A. State or Local Source of Power B. Institutional Design 1. Massachusetts: Towns and Boston 2. New York City 3. Washington: King County-Seattle III. Local Health Agency Rulemaking as Wilsonian Rulemaking? A. Public Choice as the "Dominant" Model of Agency Action, and Other "Contenders" B. The Wilsonian Administrative State C. The New York City Portion-Cap Rule as Wilsonian Rulemaking? Conclusion INTRODUCTION

Local government scholars have paid significant attention to local "innovation" in the sphere of regulatory policy. (1) And for good reason. Many of these local innovations diffuse both horizontally, to other cities and counties, and vertically, to the state and federal levels, thus profoundly impacting the nation's regulatory landscape. (2) Local government scholars have devoted less effort to analyzing the form of these regulations, (3) often presuming that local law derives from ordinances passed by the general governing (and, usually, legislative) body of a city or county. (4) As a result, to the extent that scholarship considers the actors involved in formulating local policy, it usually focuses on elected officials like city councilors and mayors. (5) This Article highlights another, increasingly important source of local regulation: administrative rulemaking. Particularly in the realm of public health, cities have adopted many high-profile and innovative regulatory policies by administrative rule rather than by council-enacted ordinance. (6) Despite the increased importance of local administrative rulemaking, scant scholarship--either in local government or administrative law--has wrestled with the doctrinal and normative questions flowing therefrom. (7)

The recent litigation challenging New York City's cap on portion sizes of sugar-sweetened beverages--inaccurately called a "soda ban"--has brought the issue of local administrative rulemaking to the fore. (8) Although the city's Board of Health promulgated the portion-cap rule, it was heavily promoted by Mayor Michael Bloomberg and is therefore frequently identified with him in the popular media. (9) This article uses the New York City portion-cap rule, or the "Bloomberg soda rule," as well as public health regulations more generally, as a prism through which to analyze the distinctive characteristics of the local administrative process. Part I highlights cities' impressive record of administrative regulation in the public health realm, surveying key regulatory policies that exceeded the federal and state regulatory floors in attempting to reduce tobacco use and obesity. Part II considers the intriguing doctrinal questions that arise when an agency of a city, which itself is an agent of the state, makes rules with the force of law, and how these questions have been addressed in the New York City portion-cap litigation and elsewhere.

Part III then addresses the compelling normative and theoretical questions raised by city administrative agencies' aggressive record in the public health sphere. Municipal regulation of the tobacco, food, and soda industries beyond the federal and state regulatory floors presents a challenge to the standard "public-choice" narrative of administrative action, which suggests that agencies are likely to be influenced, if not co-opted, by the powerful industries they are supposed to regulate. In addition to industry opposition, some local public health regulations, like New York City's portion-cap rule, (10) have aroused significant popular disapproval. To explain this sort of unpopular--perhaps even elitist--rulemaking, Part III turns to Woodrow Wilson's writings, as a political scientist, on administrative agencies. Wilson idealized agencies as apolitical, expert promulgators of "scientific" regulations that would benefit the public good. In the decades since, academics have widely lampooned Wilson's vision as naive, more often viewing agency work as the product of interestgroup influence. Part III explains why recent rulemaking by local administrative agencies strives to fit the Wilsonian mold. The Article concludes by assessing the legal challenge and "cultural attack" on the New York City portion-cap rule within the Wilsonian framework. Without a general acceptance of the legitimacy of expert-driven rulemaking, proposals like the portion-cap rule will be difficult to sustain.

1. CITIES' RECORDS OF ADMINISTRATIVE RULEMAKING IN PUBLIC HEALTH

   In the last two decades, local governments have been particularly eager to take on significant public health problems--particularly tobacco use and obesity. (11) With respect to tobacco use, cities have led in the enactment of clean indoor air policies, (12) spearheading a movement that eradicated second-hand smoke for tens of millions of Americans in public spaces like stores, restaurants, and bars. (13) Most of these regulations were enacted by ordinance, but in some instances, local health agencies promulgated administrative rules mandating smoke-free environments. (14) For example, the Boston public health authority and a number of other, smaller Massachusetts municipalities prohibited smoking in indoor public places by administrative rule, a practice sanctioned by the Massachusetts Supreme Judicial Court in 2001. (15) In West Virginia and Michigan, county public health agencies expanded the scope of the state's smoke-free workplace law to cover all indoor public places, which their respective state high courts upheld. (16) In other jurisdictions, however, local health agencies either doubted their own authority to regulate indoor smoking, (17) or had their regulations invalidated by the courts. (18) As secondhand smoke regulation continues to evolve--covering additional places like parks, residential buildings, and outdoor areas (19)--some local health agencies continue to be at the vanguard of regulation. (20)

   In addition to smoking bans, local health agencies have sought to clamp down on tobacco use through other regulatory methods. When numerous cities banned outdoor tobacco advertising in the 1990s, mostly by ordinance, others addressed the issue by health agency rule. (21) More recently, Boston and numerous other Massachusetts municipalities banned the sale of cigarettes in pharmacies through rules issued by their boards of health, and Boston's board of health also banned the sale of cigar wraps. (22) In 2009, New York City's Board of Health issued a rule requiring retailers selling cigarettes to display graphic warning posters near the area of sale. (23) Each of these rules sought to tighten the regulatory regime applicable to the tobacco industry and its affiliates within a particular jurisdiction.

   With respect to combating obesity, evidence from big cities shows that food retail regulations have been implemented by administrative rule more frequently than tobacco restrictions. (24) New York City's Board has been particularly aggressive in the last decade. It was the first governmental entity in the United States to ban the use of artificial trans fats in restaurant foods, (25) and the first to require menu labels at franchise restaurants to post calorie counts on menu boards. (26) Soon after New York City's action, many other cities and counties adopted similar regulations, with some doing so by administrative rule rather than by local ordinance. As in the tobacco context, Boston and other Massachusetts municipalities banned trans fats administratively rather than by ordinance. (27) Other notable jurisdictions include King County, Washington, whose Board of Health adopted both menu labeling and trans fat regulations by administrative rule, (28) and Nashville-Davidson County, whose Board of Health adopted a menu labeling rule that was later preempted by the state legislature. (29)

   Perhaps the highest-profile obesity prevention policy adopted by an administrative agency is New York City's portion-cap rule, which was supposed to take effect in March 2013, but is currently stayed by court order. (30) Aimed at reducing the consumption of sugary drinks like soda in order to prevent obesity and other health problems, the rule would have capped the size of containers in which sugary beverages could be served in certain retail settings. (31) No other jurisdiction has yet adopted a similar rule, but others expressed interest before the litigation achieved its success to date. (32)

   In a variety of instances, action first taken at the local level by an administrative agency has diffused "horizontally" to other jurisdictions, many (if not most) of which adopt the policy by ordinance rather than by administrative rule. For instance, although New York City first adopted menu labeling as a Board-promulgated rule, a number of other cities and counties later adopted the same or similar regulation by council enactment. (33) Why some cities are more likely to use the administrative process rather than the ordinance-enacting process is a complicated question, and it is beyond this Article's scope to propose a complete answer. Legal doctrine, geographic jurisdiction, and institutional design play major roles, and this Article will explore these issues in some detail. Funding, staffing, institutional culture, and local political culture are also relevant. Public health scholars have studied local agency effectiveness in considerable depth, sometimes considering at least some of the above factors, but most studies focus on service provision or overall effectiveness rather than the use of regulatory authority specifically. (34)

   In addition to their role in stimulating horizontal policy diffusion, local administrative agencies can stimulate vertical policy migration. This process occurs when a state legislature or Congress passes laws that mimic or borrow from the local regulations, or when higher-level administrative agencies promulgate their own rules...