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What Kind of Control Over What We Eat and Drink Is Permissible in Our Democracy?

Earlier this week, the New York State Supreme Court, New York County, in an opinion of the Honorable Milton A. Tingling, JSC,  enjoined and permanently restrained New York City (NYC) from implementing NYC Health Code § 81.53, commonly referred to as the “Portion Cap Rule” for sugary sodas, a regulation supported by Mayor Richard Bloomberg that would have become effective March 12 (with a 3 month grace period before enforcement).

The regulation, an anti-obesity measure, essentially would have prohibited restaurants, mobile food carts, delis, and concessions at movie theaters, stadiums, or arenas from selling sugary drinks in cups or containers larger than 16 fluid ounces.  Businesses that violated the law would have faced an initial $200 fine.

Judge Tingling ruled that NYC’s Board of Health, appointed by the mayor, does not have the power to “limit or ban a legal item under the guise of ‘controlling chronic disease,’” finding that the NYC Council, the city’s legislature, “alone has the authority to legislate as the Board seeks to do here.”  His opinion deemed the proposed rule “fraught with arbitrary and capricious consequences,” noting that “the court finds that the regulation herein is riddled with exceptions based on economic and political considerations.” The regulation did not apply to certain types of dairy products (e.g., milk shakes) and drinks containing more than 50 percent milk. Also, it applied only to businesses regulated by the city, and not to businesses, such as convenience stores and grocery stores, which are regulated by the state.

NYC reportedly plans to appeal the decision, so we will monitor how this particular matter is resolved.

More generally — and prospectively — the case highlights and will set a significant precedent for an important issue: What kind of control over what we eat and drink is permissible in our democracy?  For example, aside from NYC’s attempt to regulate portion sizes for sugary drinks, what ingredients (e.g., GMOs, already subject to initiatives in several states) and nutrients (e.g., calories, trans fat) properly may be regulated?  Is consumer interest or a health concern sufficient regulatory basis?  What authoritative body (e.g., legislature, administrative agency) should take the lead?  Are bans versus mandatory label declarations versus voluntary claims appropriate?  May specific venues (e.g., fast food restaurants, convenience stores near schools) be targeted?

These questions are interactive and complex and, together with the NYC case, forecast much ahead in the food regulatory arena.

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