Big Apple or Crabapple? The underlying issue In the Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, et al v. New York City Department of Health and Mental Hygiene, et al., was straightforward: If a consumer knows his actions are potentially harmful to his health, but chooses to act against his best interest, can a city regulate his behavior by limiting how much of a product he can buy? New York’s highest court said the “Sugary Drink” law weighed more than New York City could carry.

The Sugary Drink Rule:In June 2012, in an attempt to combat obesity among New York City residents, the NYC Board of Health amended the City Health Code by placing a limit on the size of cups and containers in which food-service establishments could sell sugary drinks. A “sugary drink” was defined as a non‑alcoholic beverage “sweetened by the manufacturer or establishment with sugar or another calorie sweetener;…[with] greater than 25 calories per 8 fluid ounces of beverage; [and]…not contain[ing] more than 50 percent of milk or milk substitute by volume…” The Sugary Drink Rule did not apply uniformly and excluded supermarkets and convenience stores.

A New York trial court declared the Sugary Drink Rule invalid in March 2013, permanently enjoining the Board of Health from implementing or enforcing the Rule. The decision was affirmed by an intermediate appellate court and, on June 26, 2014, New York’s highest court (the Court of Appeals) ruled that the Board of Health exceeded the scope of its regulatory authority in adopting the Sugary Drink Rule.

Recognizing that virtually any form of regulatory action could be cloaked in the guise of protecting the public health, the Court observed:

Instead of an outright ban on sugary beverages, the Board decided to reduce their consumption by the expedient of limiting maximum container size, thus making it less convenient for consumers to exceed recommended limits. The more cautious approach, however, does not save the [Sugary Drink Rule]. By restricting portions, the Board necessarily chose between ends, including public health, the economic consequences associated with restricting profits by beverage companies and vendors, tax implications for small business owners, and personal autonomy with respect to the choices of New York City residents concerning what they consume.Id. at 15.

Rulemaking v. Lawmaking: The Court observed that the Sugary Drink Rule went beyond the Board of Health’s power to make rules, and reflected a “policy choice” that constituted an indirect method of influencing citizens’ decision-making. The Court ruled that the Board of Health adopted a “regulation” that “interferes with commonplace daily activities preferred by large numbers of people must necessarily wrestle with complex value judgments concerning personal autonomy and economics. That is policy-making, not rule-making.” Id. at 17.

Therefore, it is clear that the Board of Health wrote the [Sugary Drink Rule] without benefit of legislative guidance, and did not simply fill in details guided by independent legislation. Because there was no legislative articulation of health policy goals associated with consumption of sugary beverages upon which to ground the [Sugary Drink Rule]… the adoption of the Rule involved the choosing of ends, or policy-making. Id. at 18.

The Dissenting Opinion — When Knowledge Isn’t Enough, Declare It Illegal: NYC is undeniably concerned with the health of its citizens and visitors. After all, it is called the Big Apple — not the Big Mac, Big Gulp or Big Burrito. The dissent meandered on a historical detour comparing big sugary drinks to the scourges of typhoid and dysentery. Unlike with typhoid and dysentery, however, NYC residents are purchasing big sugary drinks with full knowledge of the consequences. The NYC rule would more fairly be compared to a rule criminalizing the sale of more than one cigarette at a time or single serving alcohol.

The Dissent’s “Not Inherently Wrong” Standard: The dissent elaborating further, unleashed a curious Constitutional analysis:

And what is inherently wrong with a regulation that seeks to “promote a healthy diet without significantly affecting the beverage industry”?

Making the healthier choice the simpler choice is one way to reduce overconsumption of sugary drinks, a category of products that has repeatedly been linked to weight gain, obesity and a variety of diseases. Id. at 20.

Once the national laughter stopped over what was generally reported as an absurd rule, a number of municipalities throughout the country sought to prevent similar laws from being created by regulatory agencies. The issue in NYC is far more insidious than simple agency overreach. The U.S. Supreme Court is currently tied in knots over if, why, when and how to define the contours of an expansive Fourth Branch of government (See generally Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1987), Decker v. Northwest Envtl. Def. Ctr., 2013 LEXIS 2373 (2013), Christopher v. SKB 2012 U.S. LEXIS 4657 (2012) and Util. Air Regulatory Group v. EPA, 2014 U.S. LEXIS 4377 (2014)).

From Food Fight to Food Court?  While the NY Court determined that the Sugary Drink Rule was light on rulemaking but more than a few ounces too heavy on regulatory agency law-making, it did not rule that such a law could never be enacted. As the medical and scientific data concerning health and nutrition continues to grow, state and federal regulatory agencies are shifting focus from enforcement to setting health policy. The NYC Sugary Drink Rule is an extreme example of this shift in focus — feeding an already over served appetite to blame food purveyors.