As expected, a lawsuit has been filed against the New York City Board of Health challenging the recently enacted ban on the sale of sugary drinks sold in containers larger than 16 ounces.
The Board of Health enacted the first-of-its-kind law in September, intending to combat rising obesity rates. The law covers the city's restaurants, street carts, theaters, delis, and sporting venues and prohibits the sale of beverages "sweetened with sugar or another caloric sweetener that contain more than 25 calories per 8 fluid ounces." Drinks sold in grocery stores and convenience stores are exempt, as are all alcoholic drinks and those that contain at least 51 percent milk.
Originally proposed by Mayor Michael Bloomberg, the ban now faces a legal challenge from seven industry groups and unions, including the National Restaurant Association and the American Beverage Association.
"The Board of Health's decision. . . to ban certain sizes of sweetened beverages in certain outlets, imposed by executive fiat, usurps the role of the City Council, violating core principles of democratic government and ignoring the rights of the people of New York City to make their own choices," according to the complaint. "The ban at issue in this case burdens consumers and unfairly harms small businesses at a time when we can ill afford it. Defendants do not have the legal authority to adopt this beverage ban, and it is arbitrary and capricious in its design and application."
Noting that both the State Legislature and the City Council have considered and rejected proposals to target beverages similar to those banned by the law, the groups argue that the ban was passed in violation of separation of powers principles. As an administrative agency made up of members appointed by the Mayor and not elected by the people, the Board of Health acted outside the scope of its authorized power by implementing policy of its own accord, the groups contend, in an end run around the legislative branch.
The law itself is also "substantively invalid because it is riddled with arbitrary exclusions, exemptions, and classifications," according to the complaint. The application of the ban to some establishments and not others means consumers will walk past a pushcart only to walk into a 7-Eleven and buy a Big Gulp or attend a baseball game and enjoy a 20-ounce beer. "The Board therefore is merely choosing winners and losers among businesses, distorting the beverage market, and placing every covered business. . . at a competitive disadvantage."
The suit seeks a declaration that the law is unconstitutional, as well as a permanent injunction against the implementation and enforcement of the ban, which is set to take effect March 12, 2013. The plaintiffs requested a decision from the court by December 15, 2012, "so that affected businesses can avoid expending funds to comply" with the law.
To read the Article 78 and Declaratory Judgment Petition in New York Statewide Coalition of Hispanic Chambers of Commerce v. The New York City Department of Health and Mental Hygiene, click here.
Why it matters: Industry groups had vowed to file a legal challenge to the law, so the suit came as no surprise. In a statement, the Mayor's Office defended the ban, calling the lawsuit "baseless." "The Board of Health absolutely has the authority to regulate matters affecting health, and the obesity crisis killing nearly 6,000 New Yorkers a year – and impacting the lives of thousands more – unquestionably falls under its purview," said Marc La Vorgna, the Mayor's chief spokesperson. He also pointed out that prior health initiatives by the Bloomberg administration faced similar controversy and survived legal challenges – including the ban on smoking and the mandatory disclosure of calorie information on restaurant menus. "Not only did those efforts fail, but our policies have been adopted in cities and states across the country," La Vorgna said.