New York City has filed an appeal from an intermediate appellate court ruling finding that the city Board of Health exceeded its authority by adopting a regulation restricting the size of sugar-sweetened soft drinks sold in certain venues. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dep’t of Health & Mental Hygiene, No. ___ (N.Y., appeal filed August 2, 2013). Details about the intermediate appellate court decision appear in Issue 492 of this Update.

According to the city’s motion for leave to appeal, the Court of Appeals erred
in (i) applying separation-of-powers doctrine to a local administrative agency;
the city argues that municipalities determine their governmental structure
and often create bodies with overlapping powers; (ii) ruling that the Board
of Health lacks legislative powers when it derives its authority from charters
explicitly recognizing those powers, and case law has defined the board as
“the sole legislative authority within the City of New York in the field of health
regulations”; (iii) interpreting Boreali v. Axelrod, 71 N.Y.2d 1 (1987), by finding
that all of its factors need not be present to invalidate a rule; according to
the city, this was the first such interpretation of the case, and the high court
“should clarify its decision”; and (iv) applying the Boreali factors. As to the
latter, the city contends, among other matters, that the lower court erred in
invalidating a regulation on the ground that the legislature had considered
the same subject matter, arguing that the high court “has upheld regulations
where the legislature has considered and rejected numerous bills on the same

The city seeks an expedited appeal, if leave to appeal is granted, citing the
American Medical Association’s recent determination that obesity is a disease
and a New England Journal of Medicine study on the irreversible health effects
of obesity and Type 2 diabetes, “both of which are disproportionately linked
to sugary drink consumption.” The city further argues, “The Board must be
able to act without any uncertainty, and with the full breadth of its critical
powers, in order to address not only the public health crisis presented by the
obesity epidemic, but also other public health concerns which may arise.”



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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.