NEW YORK, March 12 – RAPSI, Ingrid Burke. New York City Mayor Michael Bloomberg’s battle against the city’s expanding waistline suffered a blow in the state’s supreme court Monday when Justice Milton A. Tingling tossed out a prohibition on the sale of large sugary drinks in an effort to quell the city’s growing obesity epidemic.

Tingling lambasted the ban, declaring that if upheld it would “create an administrative Leviathan and violate the separation of powers doctrine. The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar sweetened beverages.”

The prohibition came in the form of an amendment to the New York City Health Code adopted by the city’s Board of Health last September based on the theory that, “[t]here is an obesity epidemic among New York City residents which severely affects the public’s health.” The rule was initially proposed verbatim to the Board by the Mayor’s office, according to the judgment.

Among other things, the rule bans the sale by food service establishments of sugary drinks in cups or containers capable of holding more than 16 fluid ounces. Alcoholic beverages as well as beverages containing more than 50% milk would be exempt from the rule.

Petitioners took issue with the fact that certain establishments would be bound by the ban, while others – perhaps right next door – would not be. Furthermore, issues were raised with loopholes that left open the possibility for the unregulated sale of drinks containing “substantially more calories and sugar than the drinks targeted herein, including alcoholic beverages, lattes, milk shakes, frozen coffees, and a myriad of others too long to list here.”

The decision details the threat of obesity by way of a series of jarring statistics, detailing claims that 57.5% of New York City residents are overweight or obese, and that the same can be said for 40% of the city’s school children. The city’s adult obesity rate – now 23% – has practically doubled since 1995. Approximately one out of every eight of the city’s residents is diabetic, and the “effect of obesity on children is devastating.”

All parties to the case agree that obesity is a major concern.

At issue in the case was whether the Board of Health was properly authorized to promulgate the regulation. 

Tingling engaged in a four-pronged analysis established by the seminal case Boreali v. Axelrod. According to Boreali, the following four factors must be considered in considering whether an administrative rule has violated the separation of powers doctrine: whether the regulation is based upon ulterior motives, such as economic or political concerns; whether the regulation was established tabula rasa, creating its own set of rules without legislative guidance; whether the regulation was passed despite the existence of ongoing legislative debate; and whether the regulation required the specific expertise of the adopting body.

Concerning the issue of ulterior motives, the court held that “the regulation herein is laden with exceptions based on economic and political concerns.”

To the tabula rasa issue, Tingling held that the Health Department – an executive agency – had not been granted under the New York City Charter the “sweeping and unbridled authority to define, create, authorize, mandate and enforce” the regulation. Thus it had failed the second element of the Boreali test.

To the point of legislative debate, Tingling noted that “[t]here is no rational argument purporting to demonstrate legislative inaction in this area,” before declaring that the third Boreali prong had failed in this case.

With regard to the fourth point, the court held that, “[t]he fact that the Board accepted a proposed regulation and chose not to make any substantive changes to it speaks to its agreement with the language of the regulation, not its failure to exercise its expertise or technical competence,” thus finding that this prong had not been violated.

The court further found the rule “arbitrary and capricious,” noting its uneven enforceability “even within a particular City block, much less the City as a whole.” At this point Tinkling reiterated petitioners’ concerns such as the rule’s ban on large sugary sodas, but its blind eye to free trade in other drinks with even higher sugar content.

In a statement issued Monday, Mayor Bloomberg championed New York as a pioneer in public health legislation – noting the City’s ban on smoking in certain public areas and the workplace, its ban on the use of trans fats, and its requirements that chain restaurants post calorie contents of menu items. He noted that New York City’s life expectancy has increased by three years since 2001.

But the pioneer’s life is never an easy one. According to Bloomberg, "[b]eing the first to do something is never easy. When we began this process, we knew we would face lawsuits… But we strongly believe that, in the end, the courts will recognize the Board of Health's authority to regulate the sale of beverages that have virtually no nutritional value, and which - consumed in large quantities - are leading to disease and death for thousands of people every year.”

He noted that lower court decisions are frequently overturned, concluding: "We're confident that today's decision will ultimately be reversed, too."