Mayor Bloomberg announced the Portion Cap Rule (“Rule”) on May 30, 2012 as a proposed amendment to Article 81 of the New York City Health Code to require food service establishments to cap at sixteen ounces the size of cups and containers used to offer, provide and sell sugary beverages. His stated purpose was to address the rising obesity rates in New York City. The Board of Health voted to adopt the Rule on September 13, 2012.
Plaintiffs brought suit in the Supreme Court on October 12, 2012 claiming that the Rule violated separation of powers as defined in Boreali v. Axelrod, Boreali v. Axelrod, 71 N.Y.2d 6, 9-14 (N.Y. 1987), and was arbitrary and capricious, and the Supreme Court agreed, declaring the regulation invalid. Coal. of Hispanic Chambers of Commerce v. Dep’t of Health, No. 653584/12, 2013 N.Y. Misc. LEXIS 1216 at *1 (N.Y. Sup. Ct. Mar. 11, 2013). On appeal, the court affirmed the Supreme Court’s ruling that the Rule violated the separation of powers doctrine of the State Constitution that establishes a boundary between the actions of the legislature and an administrative agency by failing the test set out in Boreali. It stated that the Rule “is one especially suited for legislative determination as it involves difficult social problems which must be resolved by making choices among competing ends.” The court enjoined the Board of Health from implementing and enforcing the Rule, but did not address whether the rule was arbitrary and capricious.
To read the court’s opinion, please see the New York Court’s website, at page 47.Written by Sarah L. Doyle - Research Assistant
The Agricultural Law Resource and Reference Center
July 31, 2013