New York City has filed an appeal from an intermediate appellate court ruling finding that the city Board of Health exceeded its authority by adopting a regulation restricting the size of sugar-sweetened soft drinks sold in certain venues. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dep’t of Health & Mental Hygiene, No. n/a (N.Y., appeal filed August 2, 2013). Details about the intermediate appellate court decision appear in Issue 492 of this Update.

According to the city’s motion for leave to appeal, the Court of Appeals erred in (i) applying separation-of-powers doctrine to a local administrative agency; the city argues that municipalities determine their governmental structure and often create bodies with overlapping powers; (ii) ruling that the Board of Health lacks legislative powers when it derives its authority from charters explicitly recognizing those powers, and case law has defined the board as “the sole legislative authority within the City of New York in the field of health regulations”; (iii) interpreting Boreali v. Axelrod, 71 N.Y.2d 1 (1987), by finding that all of its factors need not be present to invalidate a rule; according to the city, this was the first such interpretation of the case, and the high court “should clarify its decision”; and (iv) applying the Boreali factors. As to the latter, the city contends, among other matters, that the lower court erred in invalidating a regulation on the ground that the legislature had considered the same subject matter, arguing that the high court “has upheld regulations where the legislature has considered and rejected numerous bills on the same issue.”

The city seeks an expedited appeal, if leave to appeal is granted, citing the American Medical Association’s recent determination that obesity is a disease and a New England Journal of Medicine study on the irreversible health effects of obesity and Type 2 diabetes, “both of which are disproportionately linked to sugary drink consumption.” The city further argues, “The Board must be able to act without any uncertainty, and with the full breadth of its critical powers, in order to address not only the public health crisis presented by the obesity epidemic, but also other public health concerns which may arise.”