March 20, 2013

Super-Sized Portions Live On In NYC; May Gain Protection in Mississippi

Consumer Advertising Law Blog

By now, you've probably heard that the Bloomberg administration experienced a significant setback on last week when a state judge invalidated the New York City Mayor's attempt to limit the serving size of sugary drinks sold in the city. The so-called "soda ban" -- or, as Bloomberg calls it, the "Portion Cap Rule" -- was heavily opposed by the soda companies and relatively unpopular among New Yorkers.

In the decision, JusticeMilton Tingling of the State Supreme Court was persuaded by arguments made by the petitioners seeking to enjoin the implementation and enforcement of § 81.53 of the New York City Health Code. Justice Tingling first found that the regulation violates the constitutional separation of powers in New York State, as governed by the Boreali v. Axelrod. The court noted that "[t]he Rule would not only violate separation of powers doctrine, it would eviscerate it."Id. at 35.

Justice Tingling went on to hold that the administrative regulation was "arbitrary and capricious" because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.

While the Bloomberg administration decides whether to appeal the decision, legislators in Mississippi are doing their best to ensure that a regulation like the Portion Cap Rule never sees the light of day in their hometowns. Last Tuesday, the Mississippi legislature passed a bill, known as the "Anti-BloombergBill," barring counties and towns from enacting rules that require the posting of calorie counts, cap portion sizes, or prohibition of "consumer incentive items" such as toys in kids' meals. The bill is expected to be signed by the Mississippi governor Phil Bryant.

We have previously reported on the struggles of implementing government regulation on food, including the FDA's recent national menu labeling and calorie content rules. It remains to be seen whether the apparent failure of Mayor Bloomberg's initiative is a mere hiccup in an increasing trend of government intervention in public health, or whether the decision (and measures such as those potentially implemented in Mississippi) signals a stronger backlash against such government regulation.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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