The New York Supreme Court Appellate Division recently heard arguments in the New York City Department of Health and Mental Hygiene’s (DOHMH’s) appeal of an order striking down its initiative to limit the size of sodas sold in restaurants and other venues. According to media reports, city lawyer Fay Ng argued that, contrary to the lower court’s decision, the “Portion Cap Rule” did not exceed DOHMH’s authority and has a rational basis in the need to curb rising obesity rates without entirely precluding consumer choice.

In overturning the regulation, which would have taken effect March 12, 2013, New York Supreme Court Judge Milton Tingling not only ruled that DOHMH lacked “the authority to limit or ban a legal item under the guise of ‘controlling chronic disease,’” but that the measure would have “arbitrary and capricious consequences” arising from “uneven enforcement” and “loopholes,” such as application to some but not all food establishments, exclusion of beverages with “significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds” and no limitations on refills. In its appeal, however, the health department apparently pointed to previous measures targeting lead paint and trans fat as evidence of its “unique, extensive power” to regulate health issues other than communicable disease. It also reiterated that the limitations would not prevent consumers from obtaining sugar-sweetened beverages if desired. “People are free to have and drink as many ounces of sugary drinks as they want,” Ng was quoted as saying.

But the attorney representing the American Beverage Association (ABA) reportedly countered that DOHMH created the regulation without legislative input and thus overstepped its narrow mandate. “It’s a breathtaking example of agency overreach,” he said, suggesting that the rule was grounded in political reasoning rather than scientific evidence. “For the first time, this agency is telling the public how much of a safe and lawful beverage it can drink. This is the government coercing lifestyle decisions.”

After attending the hearing, New York University Professor of Nutrition Marion Nestle further noted that the appellate judges “were much tougher on the [DOHMH] attorney than on the one from the ABA,” challenging Ng “on jurisdiction, judicial precedents, scientific basis, efficacy, rationality, and triviality” and repeatedly referring to the Portion Cap Rule as a ban. “One said, ‘Do you need a PhD in public health to know that sugary drinks aren’t good for you?,’” Nestle reported. Additional details about the lower court’s ruling appear in Issue 475 of this Update. See Law360, The Los Angeles Times and Reuters, June 11, 2013; Food Politics Blog, June 12, 2013.