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Appeals Court Rules NY's Big-Soda Ban is Unconstitutional

Concession Stand Movie Theater - H 2013
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The city's Board of Health exceeded its legal authority when it tried to limit the size of sugary drinks.

A New York appeals court ruled Tuesday that New York City's Board of Health exceeded its legal authority and acted unconstitutionally when it tried to limit the size of sugary drinks served in restaurants and movie concession stands.

The four-judge panel's decision was unanimous, saying the board acted too much like a legislature in trying to ban the sale of sugary drinks in containers larger than 16 ounces.

We declare the regulation to be invalid, as violative of the principle of separation of powers," wrote a judge.

Here's the full ruling.

On May 30, 2012, New York Mayor Michael Bloomberg announced the Portion Cap Rule, which others have dubbed the "Soda Ban." The measure was intended to address rising obesity rates in the city.

The regulation drew sharp criticism from many businesses including from a coalition of movie theater owners, for whom concessions have been reported to make up 40 percent of operating profits.

After a New York Supreme Court judge blocked the soda ban in March, the National Association of Theatre Owners of New York State celebrated bay saying "that serious problems like obesity cannot be addressed by the imposition of an arbitrary and porous mayoral fiat."

Mayor Bloomberg was undeterred.

In June, appearing at the Supreme Court's first appellate division, Fay Ng, senior counsel for the city, argued that the health agency's move was reasonable given the benefits of reducing the size of the “default portions” of sugary beverages and that the NYC Board of Health has been vested with the power to act on any health related manner.

An appeals court took up the question of whether the health agency exceeded the bounds of its legislative authority as an administrative agency and analyzed factors like whether it had properly balanced competing concerns of public health and economic costs.

On Tuesday, the appellate court said it was not convinced "the Board of Health considered non-health factors," and pointed to various exceptions for sugary milk or juice drinks that caused some concern.

The health agency, according to the ruling "ignores the fact that the 'soda ban' does more than just target a specific food category. It also ignores that the Board has never categorized soda and the other targeted sugary drinks as inherently unhealthy. In essence... it prescribes a mechanism to discourage New Yorkers from consuming those targeted sugary drinks by dictating a maximum single portion size that can be made available in certain food service establishments. Such mechanism necessarily looks beyond health concerns, in that it manipulates choices to try to change consumer norms."

The appeals court also slaps the Bloomberg administration on the wrist for doing too much.

According to the ruling, "We think it clear that this general language [of its charter] does not empower the Board of Health to promulgate rules regulating the conduct of the people of the City of New York with respect to all matters having some relation to the public health. If the words of the statute should be so construed, this indeed would be unfettered delegation of legislative power. "