Lessons from the Demise of the Sugary Drink Portion Cap Rule

As the prevalence of obesity has increased in the United States, public health advocates have proposed various government interventions to reduce obesity-related illness, disability, and deaths. Nowhere has the anti-obesity public health campaign been more proactive than at the local level in New York City, especially during the administration of Mayor Michael Bloomberg. Much as New York City dwarfs the rest of the country and world in cartoonist Saul Steinberg’s famous map, View of the World from Ninth Avenue, so too has New York City’s public health department dominated the anti-obesity public health arena. Innovative anti-obesity measures adopted by the New York City Board of Health (“the Board”) have diffused horizontally, to other local jurisdictions, and vertically, to state governments and the federal government. The ability of the Board to adopt such innovative anti-obesity measures without express legislative authorization has been drastically curtailed, however, as a result of a recent case in which New York courts invalidated a Board rule (the “sugary drink portion cap rule”) that would have limited the size of containers in which restaurants could serve sugar-sweetened soda and other sugary beverages. The case has far-reaching implications for public health, by prohibiting the Board from unilaterally adopting innovative public health measures in the future — including public health measures that are designed to reduce chronic disease risks and perhaps including public health measures that are designed to promote health, even in areas that traditionally have been within the Board’s authority.This Article explores the legal and strategic implications of the case for public health advocates. Part I of this Article situates the sugary drink portion cap rule within the broader context of the evolution of the power and role of local public health departments. Part II recounts the saga of the adoption and invalidation of the sugary drink portion cap rule. Part III comments on the case and explores the implications of the case for the Board and other local public health departments. In addition, Part III explains why local public health boards should be granted broad authority to innovate, but also considers why the authority of elite public health boards must be constrained, especially with respect to new public health interventions that target upstream behavioral risk factors. Part III also compares two alternative approaches to constraining public health boards. The first approach, the strict nondelegation approach that was used by the New York courts in the sugary drink portion cap case, constrains local public health boards by prohibiting the board from using any form of cost benefit analysis (“CBA”) in its rulemaking procedures, unless the legislature expressly authorizes the use of CBA and specifies the precise procedures for performing the CBA. The second approach, which is the antithesis of the strict nondelegation doctrine, would constrain public health boards by mandating the use of decision procedures that would require the board to consider and weigh various consequences of their proposed rules. Part III traces the historical decline of the first approach and ascendance of the second approach in federal administrative law, and explains why the second approach also is the better approach for constraining the discretion of local public health boards, while allowing boards the flexibility to innovate and change social norms in the interest of improving public health.