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.

Opponents may also bring a Fourteenth Amendment Equal Protection claim that the ban discriminates against restaurants because it bans sales of drinks by restaurants but not convenience stores, or that it discriminates against beverage manufacturers who sell products in containers over sixteen ounces (like Honest Tea) but not beverage manufacturers that sell products in containers under sixteen ounces. A court would evaluate this claim under the rational basis test. There are several reasons to argue that the law is not rational. First, it does not really address the problem of obesity because people can always choose other high calorie foods. Second, the law is easily evaded by purchasing multiple sixteen-ounce drinks. Third, the law doesn’t ban the sale of large sodas at grocery stores or convenience stores, which is likely where many New Yorkers purchase supersized beverages.

However, under rational basis review, New York City does not have to combat these arguments—it only has to cite a rational reason for the ban. New York City will claim that the ban fights obesity by decreasing access to the highest calorie drinks. The Second Circuit has already upheld under rational basis review a New York City law requiring restaurants to print nutritional information on their menus, finding that “obesity is epidemic and is a serious and increasing cause of disease.” Classic Fourteenth Amendment cases like Railway Express and Dukes support the constitutionality of New York City’s one-step-at-a-time approach. Even though the soda ban is woefully underinclusive, it is likely enough under the Fourteenth Amendment that the ban contributes even minimally towards combatting obesity.

Opponents could also bring a claim under the dormant commerce clause, although this too is unlikely to succeed. In a dormant commerce clause challenge, the court examines whether a state law impermissibly interferes with the free flow of interstate commerce. A primary concern of the dormant commerce clause is preventing states from protecting in-state (or in-city) interests over out-of-state interests. Beverage companies would thus have to show that the regulation results in some sort of disproportionate impact on out-of-state companies to succeed on a dormant commerce clause claim. Since the ban applies regardless of the origin of the beverage, it probably hurts New York City restaurants as much or more than out-of-state beverage companies, making this a difficult argument. As one commentator has noted, the commerce clause argument may also be weak because the regulation still permits commerce in sugary drinks, only in smaller sizes.

The beverage association could make an argument that the sixteen-ounce requirement imposes excessive burdens on interstate commerce because 16.9 ounce bottles are standard in the beverage industry and companies would have to create special bottles for New York City customers. The New York City drink ban in some ways resembles the situation in Kassel, where the Supreme Court struck down an Iowa statute prohibiting trucks over sixty feet when surrounding states allowed trucks up to sixty-five feet, despite Iowa’s argument that shorter trucks prevented traffic deaths. In Kassel, however, part of the problem with the Iowa ban was that it meant long trucks would simply drive through neighboring states and kill people in those states. The New York City ban, in contrast, should improve health in New York City without hurting people outside the city. While Kassel may provide some grounds for a dormant commerce clause argument, the facts are different enough that this argument seems weak.

Even though beverage and restaurant associations are unlikely to win a legal challenge to the soda ban, they probably still will file suit. A lawsuit challenging the regulation may serve as a scare tactic against other municipalities. Beverage and restaurant associations may also focus on lobbying state legislatures to pass laws prohibiting municipalities from banning specific foods or food ingredients. This type of law already exists in several states, although Cleveland has recently won a legal challenge against an Ohio law that prohibits municipalities from regulating ingredients in restaurant foods. The real legal battle to watch thus may be between states and municipalities, with important consequences for companies, consumers, and America’s waistline.