A New York State Appeals Court today issued a ruling that deals another serious blow to New York City’s sugary drink ban. The opinion, which can be viewed here, held that the NYC Board of Health overstepped its regulatory authority when it enacted the sugary drink ban.
First, the court noted that selective regulation of sugary drinks–meaning the the law applied in different ways to different businesses selling sugary drinks, but did not ban outright the sale of all such drinks–meant that the Board of Health considered non-health factors when enacting the ban and thus exceeded the scope of its jurisdictional mandate, which is limited to health-related concerns.
Second, the court stated that the drink ban ran afoul of the Board’s legislative mandate because the legislature’s grant of authority to enact the City’s Health Code only applied to inherently harmful matters. As sugary drinks are only harmful when consumed in excessive quantities, the court held that they are not inherently harmful.
Third, the court observed that similar drink bans had been considered and rejected by the state legislature and New York City Council, providing evidence that those legislative bodies do not agree on how best to regulate sugary drinks–and making it unlikely that they intended to delegate such authority to the Board of Health.
Finally, the Board of Health brought no particular technical expertise to the rule-making process, and regulatory rule-making is most often justified when such expertise is required.
Thus, the court concluded that the sugary drinks ban violated the separation of powers doctrine. As such, it did not reach the same conclusion of the trial court, which held the ban arbitrary and capricious. Mayor Bloomberg has vowed to fight on to the highest court in New York, so stay tuned!