Court Enjoins N.Y. Ban on Large Sugary Drinks

By Wendy Parmet

New York State Supreme Court’s Justice Milton A. Tingling’s decision last night in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dpeartment of Health and Mental Hygiene, to enjoin New York City’s controversial ban on the sale of large sugary beverages should not have been surprising. As Scott Burris has noted here, “the public health side has been getting killed wherever law is made.” Defeats for new public health regulations, especially new regulations that impinge against powerful economic interests, are becoming the norm.

Still, there were some surprising and troubling, from a public health perspective, notes in Justice Tingling’s opinion, which relied heavily on Boreali v. Axelrod, a 1987 opinion by the New York Court of Appeals striking down a ban on indoor smoking, to find that the Department lacked authority to issue the regulation.

According to Justice Tingling, Boreali required the court to consider four factors including whether the regulation was based on matters beyond its stated purpose, and whether the regulation was “created on a clean slate thereby creating its own comprehensive set of rules without the benefit of legislative guidance.”   In looking to whether the ban on sugary sodas was based on factors other than its stated purpose, Justice Tingle noted among other things that the Department had cited the “enormous toll” that obesity places on the “economic health” of New Yorkers. To Justice Tingle any regard for the economic consequences of obesity demonstrated that the Department based its regulation “on economic and political concerns” outside the scope of its authority. Thus the very fact that the Department considered the economic consequences of the issue it addressed, a consideration that many scholars would claim is a critical component of sound regulatory policy, helped to doom the ban on large sodas. Would the Court, one wonders, have been more approving of the regulation if the Department had failed to show that obesity had significant economic consequences?  Somehow I suspect not.

The Court also determined that the regulation was not written on a clean slate; rather the Department had established its own set of rules without the benefit of legislative guidance. To reach this conclusion the Court detailed the long history of the New York City charter provision granting authority to the Department. According to the Court “the intention of the legislature with respect to the Board of Health is clear. It is to protect the citizens of the city by providing regulations that prevent and protect against communicable, infectious, and pestilent diseases.”  As the Court read the history, the legislature did not intend that the Department regulate to “limit or ban a legal item” to control a chronic disease.

Justice Tingling’s narrow reading of the Charter’s grant of authority to the Department, a grant that has been rightly celebrated for helping to establish the broad authority of health departments, effectively strips the Department of the ability to address many of the most pressing public health issues that we face today. By emphasizing the Department was established to address “communicable, infectious, and pestilent diseases,” Justice Tingling essentially concurred with the view, best stated by Richard Epstein, that public health law should be confined to “the old public health” and that the public health threats of the 21st century should be left unaddressed by law (at least in the absence of specific regulatory initiatives). This view mistakenly assumes that the drafters of the City charter focused on the mode of disease transmission, rather than the need for a public response to significant health threats. It also threatens to leave health authorities without the tools they need to respond to new health problems.  In short it threatens public health.

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