Georgetown public health law professors opine in the September 15, 2014, issue of the Journal of the American Medical Association (JAMA) that New York’s high court, in striking down the New York City Board of Health’s sugary drink portion size rule, could have effectively chilled “local innovation, given local agencies’ unique position to devise innovative solutions to urgent health concerns.” More information about the court’s ruling appears in Issue 528 of this Update.

The authors contend that the court narrowly construed the board’s authority which “ignored its rich historical legacy” and failed to consider that “[w]ith the epidemiologic transition from infectious to noncommunicable diseases, today’s salient threats include poor diet, physical inactivity, and smoking,” matters that they believe should be within the board’s purview. Noting how tobacco control has involved a series of interventions, including tax increases, marketing restrictions and public smoking bans, they suggest that while “[the] portion cap, in isolation might not stem the obesity epidemic, . . . a suite of nutritional policies acting over time could reduce population weight gain.”

Among other matters, the authors contend that health policy making should be able to rely on limited evidence of effectiveness, should not be measured by public support—“Agencies often have to move ahead of public opinion, which is shaped by aggressive industry lobbying and marketing”—and should enhance opportunities for people to choose a healthy life path. In their view, the portion cap rule “is minimally intrusive, returning portion sizes to reasonable historic levels,” but the court’s judgment will make it more difficult for public health officials to experiment with novel ideas, thus making it harder to evaluate and learn.


Issue 538

About The Author


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.

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