The New York Supreme Court Appellate Division recently heard arguments
in the New York City Department of Health and Mental Hygiene’s (DOHMH’s)
appeal of an order striking down its initiative to limit the size of sodas sold in
restaurants and other venues. According to media reports, city lawyer Fay Ng
argued that, contrary to the lower court’s decision, the “Portion Cap Rule” did
not exceed DOHMH’s authority and has a rational basis in the need to curb
rising obesity rates without entirely precluding consumer choice.

In overturning the regulation, which would have taken effect March 12, 2013,
New York Supreme Court Judge Milton Tingling not only ruled that DOHMH
lacked “the authority to limit or ban a legal item under the guise of ‘controlling
chronic disease,’” but that the measure would have “arbitrary and capricious
consequences” arising from “uneven enforcement” and “loopholes,” such as
application to some but not all food establishments, exclusion of beverages
with “significantly higher concentrations of sugar sweeteners and/or calories
on suspect grounds” and no limitations on refills. In its appeal, however, the
health department apparently pointed to previous measures targeting lead
paint and trans fat as evidence of its “unique, extensive power” to regulate
health issues other than communicable disease. It also reiterated that the
limitations would not prevent consumers from obtaining sugar-sweetened
beverages if desired. “People are free to have and drink as many ounces of
sugary drinks as they want,” Ng was quoted as saying.

But the attorney representing the American Beverage Association (ABA)
reportedly countered that DOHMH created the regulation without legislative
input and thus overstepped its narrow mandate. “It’s a breathtaking example
of agency overreach,” he said, suggesting that the rule was grounded in
political reasoning rather than scientific evidence. “For the first time, this
agency is telling the public how much of a safe and lawful beverage it can
drink. This is the government coercing lifestyle decisions.”

After attending the hearing, New York University Professor of Nutrition Marion Nestle further noted that the appellate judges “were much tougher on the [DOHMH] attorney than on the one from the ABA,” challenging Ng “on jurisdiction, judicial precedents, scientific basis, efficacy, rationality, and triviality” and repeatedly referring to the Portion Cap Rule as a ban. “One said, ‘Do you need a PhD in public health to know that sugary drinks aren’t good for you?,’” Nestle tails about the lower court’s ruling appear in Issue 475 of this Update. See Law360The Los Angeles Times and Reuters, June 11, 2013; Food Politics Blog, June 12, 2013.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.