Striking the soda ban: the judicial paralysis on the Department of Health.

• Author: Sivin, Alana
• Position: New York City Dept. of Health

1. INTRODUCTION II. OBESITY AND THE PORTION-CAP III. THE DEPARTMENT OF HEALTH IV. STATEWIDE AND BOREALI V. THE NON-DELEGATION DOCTRINE VI. TYPICAL CONCERNS UNDERLYING DELEGATION AND WHY THEY DO NOT APPLY IN THIS CASE VII. ANALYSIS AND SUGGESTIONS A. The July Decision B. Strengthening Agency Independence C. Increasing Public Education VIII. CONCLUSION I. INTRODUCTION

   Media coverage surrounding the New York City Department of Health's recent portion-cap on sugary beverages sold in food service establishments tends to focus on public opinions regarding the role of government. (1) Within this dialogue, there are two camps. On one hand lies the opposition; these individuals criticize the Department of Health as a "nanny state" involving itself with individual consumption choices. (2) On the other side lay the supporters who recognize the gravity of the obesity epidemic and applaud government efforts to ameliorate its effects. (3)

   Regardless of public debate, the judiciary bears a single task: to determine whether or not the regulations are lawful. In its decision to strike the portion-cap, the New York Court of Appeals, affirming the decision of the Appellate Division, First Department, (4) failed to meet that task in New York Statewide Coalition of Hispanic Chambers of Commerce v. The New York City Department of Health and Mental Hygiene. (5) Instead, it made its own subjective determination that these regulations were too political to be promulgated by an administrative agency. (6)

   However, we cannot entirely blame the court--it simply relied on bad precedent set by Boreali v. Axelrod. (7) In that case, the New York Court of Appeals, relying on antiquated notions of non-delegation arising from the New Deal era, struck down the Public Health Council's regulations restricting smoking in public areas, finding that the Council acted "outside of its proper sphere of authority." (8)

   This article stands for the position that the Boreali decision improperly relied on an outdated view of agency delegation and strayed from both state and federal precedents allowing broad delegations of legislative power to the Department of Health. The decision created a precedent whereby the judiciary may supplant agency expertise with its subjective politics, as evidenced in Statewide. Accordingly, the New York Court of Appeals failed to return authority to the Department of Health when it upheld the Appellate Division's ruling and relied on Boreali.

   Part II of this article discusses obesity and the proposed portion-cap at issue in Statewide, summarizing arguments both in favor of and against its enactment. Part III summarizes the Statewide and Boreali decisions, emphasizing their faulty reliance on the non-delegation doctrine. Part IV discusses the history of the New York City Department of Health, highlighting its eminence as an entity designated with broad legislative authority to govern all matters relating to public health, both from the plain language of the city charter and its history as a physician-led agency. Part V and VI lay out the evolution of the non-delegation doctrine in the U.S. Supreme Court and various state courts, illustrating the error in Boreali's and Statewide's reliance on the doctrine. Part VII discusses suggestions for the Court of Appeals, the Mayor, and the Department of Health in implementing future public health regulations in New York City.

2. OBESITY AND THE PORTION-CAP

   The Center for Disease Control has formally recognized obesity as a public health crisis affecting 34.9% of American adults and 17% of children between the ages of two and nineteen. (9) The Surgeon General has associated obesity with health problems such as heart disease, type 2 diabetes, stroke, certain types of cancer, and osteoarthritis. (10) In addition, obesity affects minority populations more strongly than other groups. (11) Studies from the Center for Disease Control indicate that obesity disproportionately affects minority populations, with 47.8% of non-Hispanic black Americans suffering from obesity, followed by 42.5% of Hispanic Americans. (12)

   Given the gravity of the problem, it should come as no surprise that state and local governments have begun implementing aggressive food and health-related initiatives toward combating the epidemic. New York City, in particular, has been a leader in this area. For example, over the last five years alone, the New York City Department of Health, through its policy-making arm, the Board of Health, became the first local agency in the United States to ban the use of artificial trans fats in restaurant foods (13) and to require franchise restaurants to post calorie counts on menu boards. (14)

   New York City's initiatives have not gone unnoticed. Its caloric content amendment was not only implemented by California, Maine, New Jersey, and Vermont, but was also integrated into the federal Affordable Care Act. (15) Furthermore, in the fall of 2014 the FDA announced its intent to regulate e-cigarettes after the enactment of an amendment to the New York City Smoke-Free Air Act prohibiting electronic cigarettes in bars, restaurants, offices, parks, and benches. (16)

   Thus, when the Board of Health amended the N.Y. Health Code to include a portion-cap on sugary beverages larger than sixteen ounces (in response to studies indicating a strong link between sugary beverage consumption and obesity), (17) the future of public health seemed promising not only in New York City, but also nationwide. Under the amendment to section 81.53 of the N.Y. Health Code, food service establishments would not be able to "sell, offer, or provide a sugary drink in a cup or container that is able to contain more than 16 fluid ounces." (18)

   The rule defines a "sugary drink" as:

   a carbonated or non-carbonated beverage that: (A) is non-alcoholic; (B) is sweetened by the manufacturer or establishment with sugar or another caloric sweetener; (C) has greater than 25 calories per 8 fluid ounces of beverage; and (D) does not contain more than 50 percent of milk or milk substitute by volume as an ingredient. (19) Failure to comply with these regulations results in a fine of no more than $200 for each violation. (20)

   In defending the portion-cap, Public Health Commissioner Thomas called it a "reasoned and reasonable response to the crisis." (21) Sugary drinks, he continued, "can bring on obesity and diabetes, and drinking just one sugary drink per day increases a person's risk...." (22) In his statement supporting the cap, former Mayor Bloomberg pinpointed obesity as "the only major public health issue we face." (23) The National Alliance for Hispanic Health, along with various other interest organizations, also pointed to studies demonstrating the strong link between the consumption of sweetened beverages and obesity. (24) One study notes "sweetened beverages account for at least one-fifth of the weight gained between 1977 and 2007 in the US population." (25) It also noted that underserved populations disproportionately consume these beverages and that the portion-cap would "ease an unfair burden on the poor of being the helpless victims of an industry where profits triumph [over] good health." (26) Despite its justifications, the portion-cap faced significant backlash in the media and in the political sphere. Some criticized the Mayor for infringing on individuals' personal choice of beverage, while others voiced concern that it unfairly favored certain businesses over others. (27) Some commentators expressed a fear that the cap would prove ineffective and "poison the water for better solutions." (28) The Chamber of Commerce argued that the Board failed to properly evaluate the costs and benefits of the ban and account for the "hundreds of thousands to millions of dollars" that businesses presumably would suffer as a result of its enactment. (29)

   However, the portion-cap is an appropriate and cost-efficient solution to New York City's obesity crisis. A report conducted by Professor Shi-Ling Hsu indicates that whereas the cost of sugary drink regulation could reach a maximum of $500 million, the benefits of such regulations could range from $3.2 billion to $13.2 billion. (30) According to the study, "the most known adverse health outcomes stem from the contribution that sugary drinks have in making people obese." (31) Accordingly, the sale of sugary drinks "imposes further [treatment] costs ... [including costs for] ... type 2 diabetes, coronary heart disease, and a variety of cancers." (32) In conducting his cost-benefit analysis, Hsu takes two approaches. First, he focuses on the monetary costs stemming from obesity--namely, type 2 diabetes and coronary heart disease. (33) Second, he focuses on productivity costs specifically attributable to obesity. (34) By synthesizing studies from the American Medical Association, (35) The National Center for Health Statistics, (36) and the Center for Disease Control, (37) Hsu approximates the total cost of type 2 diabetes attributable to sugary drink consumption in New York City at $3.6 billion, (38) the total cost of coronary heart disease in New York City attributable to sugary drink consumption at $9.6 billion, (39) and the total productivity costs of obesity in New York City at $412 million. (40) The study concludes by determining that the benefits of the portion-cap, estimated modestly, yield a 14:1 benefit-cost ratio. (41)

   Furthermore, although opposing city council members argued that the cap would open the floodgates and give the Board of Health limitless authority to enact "even more intrusive policies," (42) comprehensive expert studies indicate that decreasing portion sizes is the most tailored solution to address the problem of obesity. A recent study by public health scholars Marion Nestle and Lisa R. Young indicates that the sharp increase in obesity in recent years is largely due to excess calorie consumption, (43) indicating "a need for greater attention to food...