August 8, 2013

Bloomberg Administration Keeps the War on Soda Alive -- Barely

Seller Beware: Consumer Protection Insights for Industry,

Already facing two significant setbacks, New York City mayor Michael Bloomberg still refuses to let his signature "soda ban" die -- at least not without a fight.

As we discussed earlier this year, Mayor Bloomberg's effort at limiting the serving size of sugary drinks sold in New York City hit its first speed bump when the State Supreme Court held that the mayor's "Portion Cap Rule" violates the New York's constitutional separation of powers doctrine and was "arbitrary and capricious."

Undeterred, the Bloomberg Administration appealed the decision, and last week, a four-judge panel on the State Supreme Court's Appellate Division unanimously held that the regulation was "invalid, as violative of the principle of separation of powers," agreeing that the ban should be struck.

In a 29 page opinion, the Appellate Division held that all legal factors "indicative of the usurpation of legitimate legislative functions are present in this case." The decision to regulate a particular food or beverage, the court explained, "is inherently a policy decision" that "reflects a balance between health concerns, an individual consumer's choice of diet, and business financial interests in providing the targeted sugary drinks." Given these difficult social problems and competing choices, "the 'Soda Ban' is one especially suited for legislative determination." The court did not reach the argument that the regulation was arbitrary and capricious.

Mayor Bloomberg held true to his promise to appeal the decision yet again, and the city filed a motion for leave to appeal on August 5 with the Court of Appeals, New York's highest court. The city argues that leave to appeal should be granted, among other reasons, because there is "no state constitutional separation of powers doctrine applicable to localities." The city also requests "expedited" treatment of the appeal, "in order to resolve the important issues regarding the authority of the Board of Health" to "address not only the public health crisis presented by the obesity epidemic, but also other health concerns which may arise."

Speedy resolution of public health concerns notwithstanding, the clock is unquestionably ticking on Mayor Bloomberg's time in office. Given that other candidates appear less than eager to push forward similar initiatives, this appeal could be the soda ban's last stand.

© 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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