How the New York Court of Appeals Applied the Soda Cap Criteria to Vaccines

By Dorit Reiss

New York’s Court of Appeals reversed an Appellate Division decision and reinstated New York City’s influenza mandate for city daycares in Garcia v. New York City Department of Health and Mental Hygiene in June. Applying the same criteria the court used in 2014 to overturn the city’s controversial Soda Cap, the court found that the rules are well within the Board’s authority.

We can suspect that the recent influenza season influenced the decision, but it was also based on a more explicit delegation of authority, and a history of vaccination programs by the Board.

Also, it’s likely good news for at least some of New York’s youngest, who will be better protected from a dangerous disease, and for the public.

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Are There Any Good Legal Arguments to Overturn the NYC “Soda Ban”?

By Katie Booth

New York City’s Board of Health has recently approved a ban on all sugar-sweetened drinks over sixteen ounces sold in restaurants, fast food chains, movie theaters, sports stadiums and food carts (with some exceptions). The ban does not prohibit consumers from buying multiple sixteen-ounce beverages or from buying over sixteen-ounce beverages at grocery or convenience stores. The ban has been lauded by some as an effort to curb obesity and criticized by others for doing too little or for invading personal liberty. Photos of members of the Board of Health snacking on junk food and drinking a thirty-two ounce beverage—at the meeting discussing the soda ban—have provided some comic relief in an otherwise heated debate. Now that the ban has passed, restaurant associations and beverage associations have claimed they are going to file suit. Do they have a case? Probably not.

One claim opponents can make is that the Board overstepped its authority by regulating soft drink container sizes. It is unclear if this claim would succeed. The Board of Health has broad authority under New York City’s Health Code, which states that “[s]ubject to the provisions of this Code or other applicable law, the Department may take such action as may become necessary to assure the maintenance of public health, the prevention of disease, or the safety of the City and its residents.” New York City will argue that the ban is “necessary to assure the maintenance of public health” in the face of an obesity epidemic, and will point to the apparent success of the City’s trans fat ban as evidence that such bans are effective in decreasing the intake of unhealthy foods. The beverage industry will likely respond that the ban is not “necessary” because it does not really address obesity—consumers can too easily evade the law by buying multiple smaller sodas or by buying sodas at convenience stores.

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