All Over Albany

New York State's highest court rejects bid to ban large sodas

New York State's highest court -- the Court of Appeals -- issued a decision today that blocks New York City's much-talked about attempt to cap the size of containers for sodas and other sugary beverages at certain outlets. The 4-2 ruling rejected an appeal of lower court decisions by the city's Department of Health and Mental Hygiene.

There are a lot of issues that intersect at the point of a 16-ounce soda -- health, business, personal liberty -- but the court's ruling was focused on... separation of powers.

Specifically, the majority opinion argued that the city's Board of Health, a part of the health department, had overstepped its authority in issuing the ban on soda containers larger than 16 ounces because it was acting in a legislative rather than regulatory capacity. From the opinion by Judge Eugene F. Pigott, Jr:

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. Most obviously, the Portion Cap Rule embodied a compromise that attempted to promote a healthy diet without significantly affecting the beverage industry. This necessarily implied a relative valuing of health considerations and economic ends, just as a complete prohibition of sugary beverages would have. Moreover, it involved more than simply balancing costs and benefits according to pre-existing guidelines; the value judgments entailed difficult and complex choices between broad policy goals - choices reserved to the legislative branch.

In this case, the legislative branch is the New York City Council. Let's skip ahead a few paragraphs:

... when an agency in our present time either prohibits the consumption of sugary beverages altogether or discourages it by regulating the size of the containers in which the drinks are served, its choices raise difficult, intricate and controversial issues of social policy. Few people would wish to risk the physical safety of their children who play near high-rise apartment windows for the sake of unobstructed views. However, the number of people who over-indulge in sugary drinks, at a risk to their health, is clearly significant. An agency that adopts a regulation, such as the Portion Cap Rule or an outright prohibition of sugary beverages, 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.

The dissenting opinion from Judge Susan Phillips Read is interesting in part because it includes a condensed history of how New York City has attempted to handle public health issues over the last two centuries. In her opinion, she argues that the majority's take on whether the Board of Health overstepped its bounds doesn't match with the city's long history of the topic. Rather, she argues, it's just an attempt to cover for the fact that the majority "does not believe it to be a good idea for the Board to mandate the portion size of sugary drinks." She also points out that there apparently wasn't a problem when the Board banned restaurants from using trans fats.

It's a good bet that more topics like the soda portion cap will come along in the next handful of years. As a culture, we seem to be at a place where we're OK with being all up in each other's business about how we eat. Maybe it's the upswing in obesity, maybe it's that there's more attention on health care and health care costs, maybe it's just the proliferation of foodies. We're guessing it's easier to push rules like the soda portion cap through an agency like a department of health than it is through a legislative body because there's often going to be public outcry. You know, who doesn't have an opinion on stuff like this? Everyone eats.

So it'll be interesting to see if this ruling affects the course of these topics in the state.

Elsewhere: NYT: City Loses Final Appeal on Limiting Sales of Large Sodas