Applying separation-of-power principles that defeated a state administrative body’s effort to regulate smoking in public places, Boreali v. Axelrod, 71 N.Y.2d 1 (N.Y. 1987), a New York appeals court has affirmed a lower court ruling invalidating the “Portion Cap Rule” promulgated by the New York City Department of Health and Mental Hygiene (Department). In re N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dept. of Health & Mental Hygiene, No. 2013 NY Slip Op 05505 (N.Y. App. Div., decided July 30, 2013).

The rule would have limited the sale of certain sugary soft drink to 16 ounces in food service establishments over which the Department has authority under a memorandum of understanding with the state’s Department of Agriculture and Marketing. Thus the rule would have applied to restaurants, delis, fast-food franchises, movie theaters, stadiums, and street carts, but not to grocery stores, convenience stores, corner markets, gas stations, and other similar locales. It would not have applied to alcoholic beverages, milk shakes, fruit smoothies, mixed coffee drinks, mochas, lattes, and 100 percent fruit juices.

According to the court, this lack of uniformity in application demonstrated that the Board of Health, which adopted the Department’s recommended rule without change, took into account non-health policy considerations and therefore exceeded its authority, which is derived from the legislative body, here, the City Council. As the court noted, “administrative agencies may only effect policy mandated by statute and cannot exercise sweeping power to create whatever rule they deem necessary.” Because the rule did not “fill a gap in an existing regulatory scheme” but instead represented writing on a clean slate and because both city and state legislative bodies have been unable to adopt laws targeting sugar sweetened beverages, the court was compelled to rule that the action violated the separation-of-powers doctrine. The court did not reach the argument that it was arbitrary and capricious.

In response to the court’s ruling, Mayor Michael Bloomberg said, “Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic.” See Office of the Mayor News Release, July 30, 2013.