NY appeal court issues dissenting opinion on NY’s large soda ban.

images2On Thursday the Court of Appeal issued a dissenting opinion that the city’s Board of engaged in lawmaking when it banned over sized sugary sodas from the city. Four justices concurred, two dissented. Administration officials had argued that the policy was necessary to combat obesity and that the ban was limited to sodas larger than 16 ounces.

Attorney Richard Dearing, who represented the city, argued the 2012 regulation was a reasonable and science-based effort to combat obesity.

Critics, including the American Beverage Association, had argued that only the City Council or state Legislature could enact such a broad regulation.

Judge Eugene F. Pigott who wrote for the majority opined: “By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York.”

Judge Susan Read in a dissenting opinion specified that the court’s ruling would curtail the Board of ’s ability to deal with public threats of the 21st century.

The entire opinion is posted below.
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
No. 134
In the Matter of New York
Statewide Coalition of Hispanic
Chambers of Commerce, et al.,
The New York City Department of
and Mental Hygiene, et
Richard Dearing, for appellants.
Richard P. Bress, for respondents.
Wilfredo Lopez et al.; Gillian E. Metzger et al.;
National Association of County and City Officials et al.;
The Business Council of New York State, Inc. et al.; Washington
Legal Foundation et al.; Maria del Carmen Arroyo et al.; New York
State Conference of the National Association for the Advancement
of Colored People et al.; The Chamber of Commerce of the United
States of America et al.; Paul A. Diller et al.; National
Alliance for Hispanic et al.; Eric Lane, amici curiae.
We hold that the New York City Board of , in
adopting the “Sugary Drinks Portion Cap Rule”, exceeded the scope
of its regulatory authority. By choosing among competing policy
goals, without any legislative delegation or guidance, the Board
engaged in law-making and thus infringed upon the legislative
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jurisdiction of the City Council of New York.
The New York City Board of is part of the City’s
Department of and Mental Hygiene and consists of the
Commissioner of that Department, the Chairperson of the
Department’s Mental Hygiene Advisory Board, and nine other
members, appointed by the Mayor. In June 2012, as part of its
effort to combat obesity among City residents, the Department
proposed that the Board amend Article 81 of the City Code
so as to restrict the size of cups and containers used by food
service establishments for the provision of sugary beverages.
After a preliminary vote by the Board, a Notice of Public Hearing
was published, seeking comments from the public. The substantial
number of comments both before and during the July hearing
indicated a groundswell of public interest and concern. On
September 13, 2012, the Board voted, with one abstention, to
adopt the Department’s proposed rule – referred to as the
“Portion Cap Rule” – to go into effect in March 2013.
The Portion Cap Rule provides in relevant part that
“[a] food service establishment may not sell, offer, or provide a
sugary drink in a cup or container that is able to contain more
than 16 fluid ounces” and “may not sell, offer or provide to any
customer a self-service cup or container that is able to contain
more than 16 fluid ounces” (NY City Code [24 RCNY] § 81.53
[b], [c]). A “sugary drink” is defined as a non-alcoholic
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beverage that “is sweetened by the manufacturer or establishment
with sugar or another calorie sweetener; . . . has greater than
25 calories per 8 fluid ounces of beverage; . . . [and] does not
contain more than 50 percent of milk or milk substitute by volume
as an ingredient” (NY City Code [24 RCNY] § 81.53 [a]
[1]). The Portion Cap Rule does not apply to establishments,
such as supermarkets and convenience stores, that are subject to
regulation and inspection by the New York State Department of
Agriculture and Markets.
In October 2012, petitioners, six national or statewide
not-for-profit and labor organizations, commenced this hybrid
article 78 proceeding and declaratory judgment action seeking to
invalidate the Portion Cap Rule. In addition to the Board of
, the Department of and Mental Hygiene and its
Commissioner are named as respondents.
On March 11, 2013, Supreme Court, New York County
granted the petition, declared the Portion Cap Rule invalid, and
permanently enjoined respondents from implementing or enforcing
it. Supreme Court addressed two arguments raised by petitioners
– first, whether the Board of had exceeded its regulatory
authority “and impermissibly trespassed on legislative
jurisdiction” (2013 NY Slip Op 30609 [U], 11 [Sup Ct, NY County
2013]) and second, whether the Portion Cap Rule is “arbitrary and
capricious” (id. at 35). The court ruled in favor of petitioners
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on both contentions.
With respect to the first issue, the court surveyed the
history of the New York City Charter and reached the conclusion
that the elective New York City Council is the sole legislative
body in the City, rejecting respondents’ contention that the
Board of has inherent law-making authority. Supreme Court
applied our decision in Boreali v Axelrod (71 NY2d 1 [1987]), in
which we held that the New York State Public Council
overstepped its regulatory authority when it adopted regulations
prohibiting smoking in a wide variety of indoor areas open to the
public that had previously been considered, but not adopted, by
the State Legislature. Supreme Court addressed the four
considerations that we had identified in Boreali, and concluded
that each of those factors weighed in favor of invalidating the
Portion Cap Rule (see 2013 NY Slip Op 30609 [U] at 11-34).
Finally, Supreme Court found the Portion Cap Rule arbitrary and
capricious, noting that “it applies to some but not all food
establishments in the City, [and] it excludes other beverages
that have significantly higher concentrations of sugar sweeteners
and/or calories” (2013 NY Slip Op 30609 [U] at 35).
The Appellate Division unanimously affirmed Supreme
Court’s order, also rejecting the contention that the Board has
inherent legislative power, and holding that “under the
principles set forth in Boreali, the Board of overstepped
the boundaries of its lawfully delegated authority when it
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promulgated the Portion Cap Rule to curtail the consumption of
soda drinks. It therefore violated the state principle of
separation of powers” (110 AD3d 1, 16 [1st Dept 2013]). The
Appellate Division did not reach the issue of whether the Portion
Cap Rule is arbitrary and capricious.
With respect to the first Boreali factor, relating to
whether the agency engaged in the balancing of competing concerns
of public and economic cost, thus acting on its own idea
of sound public policy, the Appellate Division reasoned that the
Board did not act solely with a view toward public
considerations but engaged in policy-making when it adopted the
Portion Cap Rule. The court observed that the Portion Cap Rule
is “especially suited for legislative determination as it
involves ‘difficult social problems,’ which must be resolved by
‘making choices among competing ends'” (110 AD3d at 11, quoting
Boreali, 71 NY2d at 13).
With regard to the second Boreali factor, whether the
agency created its own comprehensive set of rules without benefit
of legislative guidance, the Appellate Division concluded that
the Board illicitly created the Portion Cap Rule on a “clean
slate”, and was not merely conducting permissible interstitial
rule-making. The court noted that “the Board of does not
dispute that neither the state legislature nor the City Council
has ever promulgated a statute defining a policy with respect to
excessive soda consumption” (id. at 13).
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Turning to the third Boreali factor, which relates to
whether the challenged rule governs an area in which the
Legislature has repeatedly tried to reach agreement in the face
of substantial public debate and vigorous lobbying by interested
factions, the Appellate Division noted that
“[o]ver the past few years, both the City and
State legislatures have attempted, albeit
unsuccessfully, to target sugar sweetened
beverages. For instance, the City Council
has rejected several resolutions targeting
sugar sweetened beverages (warning labels,
prohibiting food stamp use for purchase, and
taxes on such beverages). Moreover, the
State Assembly introduced, but has not
passed, bills prohibiting the sale of sugary
drinks on government property and prohibiting
stores with 10 or more employees from
displaying candy or sugary drinks at the
check out counter or aisle. While the
Portion Cap Rule employs different means of
targeting the sale of certain beverages than
those considered by the legislative bodies,
it pursues the same end, and thus addresses
the same policy areas as the proposals
rejected by the State and City legislatures.
This is a strong indication that the
legislature remains unsure of how best to
approach the issue of excessive sugary
beverage consumption.” (Id. at 14-15
[footnotes and internal quotation marks
Finally, with respect to the fourth Boreali factor,
whether the development of the rule required expertise in the
field of , the Appellate Division concluded that the Board
had not “exercised any special expertise or technical competence
in developing the Portion Cap Rule” (110 AD3d at 15).
We granted respondents leave to appeal. Subsequently,
we accepted amicus briefs from a number of not-for-profit
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organizations, research and policy centers, and professors of
law, as well as 32 individual members of the New York City
Council and the New York City Public Advocate. The quantity of
these submissions is an indication of the interest of the subject
to diverse persons, and the briefs have been of considerable
assistance to us in our deliberations. We now affirm the
Appellate Division’s order.
First, we address respondents’ claim that the Board,
having been created by the State Legislature, has legislative
powers separate and apart from the City Council. The City
Charter unequivocally provides for distinct legislative and
executive branches of New York City government. The City Council
is the sole legislative branch of City government; it is “the
legislative body of the city. . . . vested with the legislative
power of the city” (New York City Charter § 21 [emphasis added];
accord Under 21, Catholic Home Bur. for Dependent Children v City
of New York, 65 NY2d 344, 356 [1985]; Subcontractors Trade Assn.
v Koch, 62 NY2d 422, 427 [1984]). The New York State
Constitution mandates that, with an exception not applicable
here, “[e]very local government . . . shall have a legislative
body elective by the people thereof” (NY Const Art IX, § 1 [a];
see also Municipal Home Rule Law § 2 [7]), and that elective body
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in New York City is the City Council.1
Respondents, however, contend that the Board of
is a unique body that has inherent legislative authority. We
disagree. The provision of the City Charter principally cited by
respondents – setting out the authority of the Board to “add to
and alter, amend or repeal any part of the code, . . .
[to] publish additional provisions for security of life and
in the city and [to] confer additional powers on the
[Department of and Mental Hygiene] not inconsistent with
the constitution, laws of this state or this charter” (NYC
Charter § 558 [b]) – reflects only a regulatory mandate, not
legislative authority. It is true that the Board “may embrace in
the code all matters and subjects to which the power and
authority of the [Department of and Mental Hygiene]
extends” (NYC Charter § 558 [c]) and that the Charter refers to
the Board’s supervision over “the reporting and control of
communicable and chronic diseases and conditions hazardous to
life and ” and “the abatement of nuisances affecting or
1 We are aware that historically the City Council once
shared legislative functions with the body known as the Board of
Estimate, notwithstanding the language of the Charter (see
generally Board of Estimate of City of New York v Morris, 489 US
688 [1989] [declaring the voting system of the Board of Estimate
unconstitutional]). In November 1989, however, the voters of New
York City approved changes to the Charter that eliminated the
Board of Estimate, thus making the City Council “the sole
legislative body of the City” (Frederick A. O. Schwarz, Jr. &;
Eric Lane, The Policy and Politics of Charter Making: The Story
of New York City’s 1989 Charter, 42 NYL Sch L Rev 723, 828
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likely to affect the public ” (NYC Charter § 556 [c] [2];
see also § 556 [c] [9] [referring to Board’s authority to
“supervise and regulate the food and drug supply of the city and
other businesses and activities affecting public in the
city”]). Nonetheless, the Charter contains no suggestion that
the Board of has the authority to create laws. While the
Charter empowers the City Council “to adopt local laws . . . for
the preservation of the public , comfort, peace and
prosperity of the city and its inhabitants” (NYC Charter § 28
[a]), the Charter restricts the Board’s rule-making to the
publication of a code, an entirely different endeavor.
Moreover, the language in section 558 (c) of the
Charter – describing the Board’s purview as comprising “all
matters and subjects” within the authority of the Department of
and Mental Hygiene – was included in 1979 to preclude the
Board from attempting to regulate areas not related to .
At that time, the City’s Committee on became concerned
that “[r]egulations passed by the Board of may be overly
broad and so invade the [province] of the City Council’s
legislative authority” (Rep of Comm on in Favor of
Approving and Adopting a Local Law to Amend the New York City
Charter in relation to Defining Powers of Board of , Local
Law Bill Jacket, Local Law No. 5 [1979] of City of NY). The
Committee proposed a bill to clarify the Board’s authority, which
was passed by the City Council in February 1979 and approved by
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the Mayor the following month (Local Law No. 5 [1979] of City of
New York, amending NYC Charter § 558 [c]). Far from indicating a
wide legislative jurisdiction, as respondents contend, § 558 (c)
was intended to ensure that the Board of not regulate too
Respondents offer no practical solution to the
difficulties that would arise from treating the Board and the
City Council as co-equal legislative bodies. On respondents’
theory, it is unclear what the law in New York City would be were
the Board to pass a “law” that directly conflicted with a
local law of the City Council. It is no solution to this
difficulty that the State Legislature could step in to resolve
such a conflict. In short, it is clear from the Charter that the
Board’s authority, like that of any other administrative agency,
is restricted to promulgating “rules necessary to carry out the
powers and duties delegated to it by or pursuant to federal,
state or local law” (NYC Charter § 1043). A rule has the force
of law, but it is not a law; rather, it “implements or applies
law or policy” (NYC Charter § 1041 [5]).
Respondents point out our passing references to the
Board’s “legislative authority” in Grossman v Baumgartner (17
NY2d 345, 351 [1966] [upholding Board’s former rule prohibiting
tattooing by non-physicians]) and in a footnote in Schulman v New
York City &; Hospitals Corp. (38 NY2d 234, 237 n 1 [1975]).
A more accurate description is found in the words we used to
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describe the Board’s rule earlier in the Grossman opinion: “an
administrative regulation which is legislative in nature” (17
NY2d at 349).
Another of our cases cited by respondents, People v
Blanchard (288 NY 145 [1942]), held that the Board may make it an
offense to keep “unwholesome poultry” and a defendant may be
convicted of a misdemeanor for violating that Sanitary Code
regulation. But Blanchard stands for the proposition that, even
though the Board does not possess “substantive law-making power”
(id. at 147) and “has not been licensed to define any criminal
offense” (id. at 148), it may pass a regulation with criminal
consequences because “it is the city charter . . . and the Penal
Law . . . that make any violation of the Sanitary Code a
misdemeanor (id.). Blanchard emphasizes the Board’s regulatory,
as opposed to law-making, capacity.
Given our position that the Board’s role is regulation,
not legislation,2 the next issue raised in this appeal is whether
the Board properly exercised its regulatory authority in adopting
the Portion Cap Rule. The parties and the lower courts correctly
2 It appears that the dissenting Judges do not disagree.
Notably, the dissent, at the conclusion of a survey of
legislative history and case law touching on the Board’s powers,
concludes not that the Board’s authority is legislative, but that
it is “at least ‘nearly legislative'” (dissenting op at 11; see
also id. at 14 [referring to the Board’s “authority to regulate”
and its “regulations”]).
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analyze this question by using the conceptual framework of
Boreali. Because a doctrine of “separation of powers [is]
delineated in the City Charter” (Under 21, Catholic Home Bureau
for Dependent Children, 65 NY2d at 353; see also id. at 356),
Boreali provides the appropriate framework.
Boreali sets out four “coalescing circumstances”
present in that case that convinced the Court “that the
difficult-to-define line between administrative rule-making and
legislative policy-making ha[d] been transgressed.” We explained
that “[w]hile none of these circumstances, standing alone, is
sufficient to warrant the conclusion that the [Public
Council] has usurped the Legislature’s prerogative, all of these
circumstances, when viewed in combination, paint a portrait of an
agency that has improperly assumed for itself the open-ended
discretion to choose ends” that is the prerogative of a
legislature” (Boreali, 71 NY2d at 11 [internal quotation marks
and square omitted]).
As the term “coalescing circumstances” suggests, we do
not regard the four circumstances as discrete, necessary
conditions that define improper policy-making by an agency, nor
as criteria that should be rigidly applied in every case in which
an agency is accused of crossing the line into legislative
territory. Rather we treat the circumstances as overlapping,
closely related factors that, taken together, support the
conclusion that an agency has crossed that line. Consequently,
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respondents may not counter petitioners’ argument merely by
showing that one Boreali factor does not obtain.
Any Boreali analysis should center on the theme that
“it is the province of the people’s elected representatives,
rather than appointed administrators, to resolve difficult social
problems by making choices among competing ends” (71 NY2d at 13).
The focus must be on whether the challenged regulation attempts
to resolve difficult social problems in this manner. That task,
policy-making, is reserved to the legislative branch.
In Boreali, the Court initially pointed out that the
Public Council’s scheme for protecting nonsmokers
indicated its “effort to weigh the goal of promoting
against its social cost and to reach a suitable compromise.” We
took this to violate the principle that “[s]triking the proper
balance among concerns, cost and privacy interests . . .
is a uniquely legislative function” (Boreali, 71 NY2d at 12). We
reasoned that “to the extent that the agency has built a
regulatory scheme on its own conclusions about the appropriate
balance of trade-offs between and cost to particular
industries in the private sector, it was acting solely on its own
ideas of sound public policy and was therefore operating outside
of its proper sphere of authority” (id. [internal quotation marks
and square omitted]). Here, similarly, the Appellate
Division noted that the Board of included exemptions and
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other indicators of political compromise in its Portion Cap Rule,
notably the exclusion of food service establishments subject to
the State Department of Agriculture and Markets. The Appellate
Division interpreted this as evidence that the Board was engaged
in policy-making, rather than simply in protecting the of
New York City residents.
However, the promulgation of regulations necessarily
involves an analysis of societal costs and benefits. Indeed,
cost-benefit analysis is the essence of reasonable regulation; if
an agency adopted a particular rule without first considering
whether its benefits justify its societal costs, it would be
acting irrationally. We stated as much in Boreali, noting that
“many regulatory decisions involve weighing economic and social
concerns against the specific values that the regulatory agency
is mandated to promote” (Boreali, 71 NY2d at 12). Therefore,
Boreali should not be interpreted to prohibit an agency from
attempting to balance costs and benefits.3 Rather, the Boreali
court found that the Public Council had “not been given
any legislative guidelines at all for determining how the
competing concerns of public and economic cost are to be
weighed” (id.).
3 Even assuming, for the sake of argument, that the Board’s
exemption of food service establishments subject to the
Department of Agriculture and Markets was a matter of choice
rather than necessity, the limited scope of the Portion Cap Rule
would not in itself demonstrate that it amounted to policymaking.
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Here, instead of an outright ban on sugary beverages,
the Board decided to reduce their consumption by the expedient of
limiting maximum container size, thus making it less convenient
for consumers to exceed recommended limits. The more cautious
approach, however, does not save the Portion Cap Rule. By
restricting portions, the Board necessarily chose between ends,
including public , the economic consequences associated
with restricting profits by beverage companies and vendors, tax
implications for small business owners, and personal autonomy
with respect to the choices of New York City residents concerning
what they consume. Most obviously, the Portion Cap Rule embodied
a compromise that attempted to promote a healthy diet without
significantly affecting the beverage industry. This necessarily
implied a relative valuing of considerations and economic
ends, just as a complete prohibition of sugary beverages would
have. Moreover, it involved more than simply balancing costs and
benefits according to pre-existing guidelines; the value
judgments entailed difficult and complex choices between broad
policy goals – choices reserved to the legislative branch.
Significantly, the Portion Cap Rule also evidenced a
policy choice relating to the question of the extent to which
government may legitimately influence citizens’ decision-making.
In deciding to use an indirect method – making it inconvenient,
but not impossible, to purchase more than 16 fluid ounces of a
sugary beverage while dining at a food service establishment –
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the Board of rejected alternative approaches, ranging from
instruction (i.e. warnings on large containers or near
vending machines) to outright prohibition. This preference for
an indirect means of achieving compliance with goals of healthier
intake of sugary beverages was itself a policy choice, relating
to the degree of autonomy a government permits its citizens to
exercise and the ways in which it might seek to modify their
behavior indirectly.
By choosing between public policy ends in these ways,
the Board of engaged in law-making beyond its regulatory
authority, under the first Boreali factor. Notably, such
policy-making would likely not be implicated in situations where
the Board regulates by means of posted warnings (e.g. calorie
content on menus) or by means of an outright ban of a toxic
substance (e.g. lead paint). In such cases, it could be argued
that personal autonomy issues related to the regulation are nonexistent
and the economic costs either minimal or clearly
outweighed by the benefits to society, so that no policy-making
in the Boreali sense is involved.
To apply the distinction between policy-making and
rule-making, a court is thus required to differentiate between
levels of difficulty and complexity in the agency’s task of
weighing competing values. For example, when an agency regulates
the purity of , or prohibits the use of interior
lead paint, or requires guards in the windows of high-rise
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apartments housing children, it chooses among ends (e.g. a
landowner’s convenience and short-term profit versus the safety,
and well-being of tenants), but the choices are not very
difficult or complex. This is because the connection of the
regulation with the preservation of and safety is very
direct, there is minimal interference with the personal autonomy
of those whose is being protected, and value judgments
concerning the underlying ends are widely shared.
By contrast, when an agency in our present time either
prohibits the consumption of sugary beverages altogether or
discourages it by regulating the size of the containers in which
the drinks are served, its choices raise difficult, intricate and
controversial issues of social policy. Few people would wish to
risk the physical safety of their children who play near highrise
apartment windows for the sake of unobstructed views.
However, the number of people who over-indulge in sugary drinks,
at a risk to their , is clearly significant. An agency
that adopts a regulation, such as the Portion Cap Rule or an
outright prohibition of sugary beverages, that interferes with
commonplace daily activities preferred by large numbers of people
must necessarily wrestle with complex value judgments concerning
personal autonomy and economics. That is policy-making, not
With respect to the second Boreali factor, respondents
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are unable to point to any legislation concerning the consumption
of sugary beverages by the State Legislature or City Council that
the Portion Cap Rule was designed to supplement. Although “[t]he
Legislature is not required in its enactments to supply agencies
with rigid marching orders” and the legislative branch may, while
declaring “its policy in general terms by statute, endow
administrative agencies with the power and flexibility to fill in
details and interstices and to make subsidiary policy choices
consistent with the enabling legislation” (Citizens for Orderly
Energy Policy, Inc. v Cuomo, 78 NY2d 398, 410 [1991]), the policy
choices made here were far from “subsidiary.” Devising an
entirely new rule that significantly changes the manner in which
sugary beverages are provided to customers at eating
establishments is not an auxiliary selection of means to an end;
it reflects a new policy choice. In short, this is not a case in
which “the basic policy decisions underlying the [challenged]
regulations have been made and articulated by the Legislature”
(Bourquin v Cuomo, 85 NY2d 781, 785 [1995], quoting N.Y. State
Facilities Ass’n v Axelrod, 77 NY2d 340, 348 [1991]).
Therefore, it is clear that the Board of wrote
the Portion Cap Rule without benefit of legislative guidance, and
did not simply fill in details guided by independent legislation.
Because there was no legislative articulation of policy
goals associated with consumption of sugary beverages upon which
to ground the Portion Cap Rule, the application of the second
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Boreali factor generates the same conclusion as the first factor:
the adoption of the Rule involved the choosing of ends, or
With regard to the third Boreali factor, little needs
to be added to the Appellate Division’s analysis. We again
caution, however, that the Boreali factors do not constitute
rigid conditions, all of which must be met in order for
petitioners to prevail. Here, inaction on the part of the State
Legislature and City Council, in the face of plentiful
opportunity to act if so desired, simply constitutes additional
evidence that the Board’s adoption of the Portion Cap Rule
amounted to making new policy, rather than carrying out
preexisting legislative policy.
In light of Boreali’s central theme that an
administrative agency exceeds its authority when it makes
difficult choices between public policy ends, rather than finds
means to an end chosen by the Legislature, we need not, in this
appeal, address the fourth Boreali factor: whether special
expertise or technical competence was involved in the development
of the rule. We do not mean to imply that the fourth factor will
always lack significance. A court might be alerted to the broad,
policy-making intent of a regulation, and the absence of any
perceived need for agency expertise, by the fact that the rule
was adopted with very little technical discussion. Here,
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regardless of who or which arm of government first proposed or
drafted the Portion Cap Rule, and regardless of whether the Board
exercised its considerable professional expertise or merely
rubber-stamped a rule drafted outside the agency, the Portion Cap
Rule is invalid under Boreali.
In sum, the New York City Board of exceeded the
scope of its regulatory authority by adopting the Portion Cap
Rule. Supreme Court properly declared the rule invalid and
enjoined its implementation.
Accordingly, the order of the Appellate Division should
be affirmed, with costs.

In the Matter of New York Statewide Coalition of Hispanic
Chambers of Commerce, et al., v New York City Department of
and Mental Hygiene, et al.
No. 134
ABDUS-SALAAM, J. (concurring):
The majority appropriately employs a flexible casespecific
analysis of the New York City Board of ’s
authority and correctly concludes that when the Board issued the
peculiar “Sugary Drinks Portion Cap Rule,” it exercised a power
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which no legislative body has delegated to it (see generally
majority op at 1-2, 11-20). Because I agree with the core
rationale and result of the majority’s opinion, I join that
opinion in full. I write separately to emphasize the carefully
circumscribed nature of the Court’s decision.
Importantly, in concluding that the Board exceeded the
bounds of its -related regulatory authority, the majority
does not give dispositive effect to any single aspect of the
Board’s conduct (see majority op at 12-13). As I see it, the
majority determines that the Board improperly engaged in lawmaking
based on the unique combination of the following
characteristics of the potion cap rule: (1) the rule sets a
broadly applicable policy affecting a large portion of the
jurisdiction’s (New York City’s) population; (2) the rule
involves a value judgment about voluntary consumer behavior; (3)
the rule addresses a field of potential regulation that relevant
legislative bodies have considered but not acted upon; and (4)
the rule does not respond to a clearly identified, widespread
crisis which has a simple, well-understood and agreed-upon
cause, such as an infectious disease. In finding that these
factors render the portion cap rule an impermissible political
and legislative enactment, I do not understand the majority to
establish any rigid decisional framework to be applied
mechanically to other actions undertaken by the Board or separate
administrative agencies in the future.
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Contrary to the dissent’s assertions (see dissenting op
at 1, 8-20), our decision does not signal any significant
departure from existing precedent regarding administrative law in
general or the scope of the Board’s authority in particular. As
my colleagues in the majority and I explain (see majority op at
8-11), we have no quarrel with much of the dissent’s historical
analysis of the Board’s authority or past decisions which have
taken an expansive view of that authority in particular contexts.
Indeed, no one should read today’s decision too broadly. We
simply conclude that, under the circumstances of this case, the
Board ran afoul of separation of powers principles by creating
the portion cap rule.
– 3 –
Matter of Statewide Coalition of Hispanic Chambers of Commerce v
New York City Department of
No. 134
In Boreali v Axelrod (71 NY2d 1 [1987]), we invalidated
a regulation on indoor smoking promulgated by a state
agency on the ground that it was an exercise of legislative
rather than regulatory authority, and was therefore a violation
of the separation-of-powers doctrine. Today the Court again
declares that a controversial regulation runs afoul of separation
of powers. In so doing, the majority misapprehends,
mischaracterizes and thereby curtails the powers of the New York
City Board of to address the public threats of the
early 21st century. Neither Boreali nor any other doctrine in
our jurisprudence compels this unhappy result. I respectfully
During his third mayoral term, New York City Mayor
Michael Bloomberg made the fight against obesity, especially
among children, a top priority for his administration. The
skills and powers of many New York City agencies were brought to
bear, including the New York City Departments of Education,
Transportation, Parks and City Planning. The most active agency,
though, was the New York City Department of and Mental
Hygiene (the Department), which initiated and worked on a host of
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public programs aimed at improving the nutrition and
physical fitness of New York City residents as a whole (see
generally Reversing the Epidemic: New York City Obesity Task
Force Plan to Prevent and Control Obesity [May 2012]).
In June 2012, the Department proposed a rule to the New
York City Board of (hereafter, generally referred to as
“the Board”) for inclusion in New York City’s Code. That
rule, which the Board calls “the Portion Cap Rule” and
petitioners, “the Soda Ban” (hereafter, generally referred to as
“the Rule”) set a ceiling on the serving size of certain kinds of
sugary drinks in food service establishments historically
regulated by the Department (see RCNY § 81.53). Other kinds of
drinks and establishments were excepted from the regulation’s
coverage (see id.).
In July 2012, the Board held a public hearing on the
proposed rule and received voluminous public comments. After
considering these comments, the Board voted unanimously to
approve the Rule as proposed by the Department, and it was added
to the Code in September 2012. Petitioners’ lawsuit
followed one month later. They argued that the Board had acted
beyond its delegated power in adopting the Rule, and asked the
court to restrain the Board from enforcing the Rule on the ground
it was ultra vires; or, alternatively, to declare that the
delegation of power to the Board in the New York City Charter
(the City Charter) violated article IX, § 1 (a) of the New York
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State Constitution, which provides that every local government
“shall have a legislative body elective by the people thereof,”
to the extent that the City Charter authorized the Board to adopt
the Rule; or, alternatively, to restrain the Board on the basis
it acted arbitrarily and capriciously in adopting the Rule.
As an initial matter, correct resolution of this appeal
depends upon an accurate understanding of the source and extent
of the Board’s authority. Petitioners take the position that the
Board’s power is delegated by the New York City Council (the
Council) under the City Charter. Similarly, Supreme Court
examined the City Charter’s history to conclude that the Board
has always been a City administrative body, chiefly concerned
with infectious disease and harmful substances. The Appellate
Division appears to have accepted this conclusion, chiding the
Board for not declaring sugary drinks “inherently unhealthy”
before regulating them. And now the majority chimes in that the
Board derives its authority “like that of any other
administrative agency” from the City Charter, and faults the
Board for presuming to analogize its unique powers to those of a
legislative body (see majority op at 10).
But the history of the City’s approaches to the
challenges of public supports the Board’s portrayal of its
authority. As the Board points out, whether those powers are
“characterized as legislative or regulatory in nature” is
somewhat beside the point because, in either event, its
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“authority is broad, and its special structure allows serious
issues of public to be addressed” expeditiously (emphasis
added). As discussed in detail in this opinion, the Board’s
powers to enact substantive rules and standards in the area of
public derive from state — not local — law. Thus, the
Board is not required to stay its regulatory hand absent
authorization from the Council to regulate sugary drinks. The
only question on this appeal should be whether the Board, in
adopting the Rule, acted reasonably within the bounds of its
state-delegated powers.
Historical Overview
The earliest public regulations in New York City
(the City) focused on the quarantine and inspection of ships
attempting to call at the harbor. State statutes provided for
this process in some detail, and empowered the governor or the
mayor to give the green light to waiting vessels (see, e.g., L
1784, ch 57; L 1794, ch 53). In 1796, the New York State
Legislature shifted these powers to an appointed “ officer”
and appointed “ commissioners,” and also directed
physicians to begin reporting cases of infectious disease to
these officials (see L 1796, ch 38). The legislature also
provided that the mayor and the common council could make “byelaws”
for clearing and filling streets or lots, and for removing
noxious or dangerous industries or businesses to protect the
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public (see id.). In short order the power to make these
“bye-laws” was moved by state statute to the appointed
officials (see L 1798, ch 65).
The term “board of ” first appears in state
statutes in 1811 (see L 1811, ch 175). Throughout the first half
of the 19th century, the New York State Legislature passed
detailed laws expanding the procedures and powers of this
predecessor of the modern-day Board, including the regulation of
certain products within city limits, such as animal hides and
cotton (see, e.g., L 1820, ch 229; L 1823, ch 71, § 39). In
addition to specific directives, the legislature also included
broad grants of power to regulate public generally; for
example, authorizing all existing boards of “to make
regulations, in their discretion concerning the place and mode of
quarantine; . . . and all such other regulations as they shall
think necessary and proper for the preservation of the public
” (L 1832, ch 333).
Then followed a brief period where public
regulation was entrusted to elected officials. In 1850, the
legislature directed that the Board would consist not of
appointees, but of the mayor and the members of the common
council, who would sit as the Board and would assume all
responsibilities previously entrusted to that body (see L 1850,
ch 275). This experiment was short-lived: the legislature
returned the Board’s composition to a group of appointed experts
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in 1866, this time to sit as the head of the newly-minted
Metropolitan Sanitation District, which included the counties of
New York, Kings, Westchester, and Richmond.
The enabling statute’s text leaves no doubt about the
separate authority vested in the Board, stating that
“said board shall also possess . . . throughout said
district, all the power and authority for the
protection of life or , or the care or
preservation of , or persons diseased or
threatened therewith, conferred by any law or ordinance
. . . upon the Mayor, Common Council, Board of ,
or the Officers . . . All the aforesaid powers
are to be possessed and exercised as fully as if herein
repeated and separately conferred upon said Board”(L
1866, ch 74, § 12).
The statute also explicitly empowered the Board to “enact such
by-laws, rules and regulations as it may deem advisable, in
harmony with the provisions and purposes of this act” (L 1866, ch
74, § 20). Although the Metropolitan Sanitation District itself
was also short-lived — and ahead of its time — the fundamental
structure established by the 1866 statutes has largely endured.
In 1870, the District was disbanded and its powers (at
least in the City) were transferred wholesale to the new
Department of , with, again, the Board at its core (see L
1870, ch 137, § 90; ch 383, § 93). In 1873, the “by-laws, rules
and regulations” mentioned in 1866 were given a formal title, the
“Sanitary Code,” and the Board was, again, vested by the state
legislature with the sole power to amend and modify these rules
(see L 1873, ch 335, § 82). Throughout the remaining decades of
the 19th century, the legislature repeatedly expanded and
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reaffirmed the Board’s powers and independence in the City (see
e.g., L 1883, ch 430; L 1882, ch 278; L 1874, ch 636).
Consistent with the state legislature’s actions, we
took an expansive view of the Board’s powers throughout this
period. In Metropolitan Bd. of v Heister (37 NY 661
[1868]), we heard four consolidated cases in which the defendants
argued that the Board was without power to pass ordinances
regulating the driving and slaughtering of cattle within City
limits, or to hold summary adjudications penalizing violations of
these rules (id. at 665). The legislature had given no direction
to the Board concerning livestock regulations in the 1866
statute, although it had supplied extensive instructions on other
matters. Nevertheless, after an examination of statutory
history, we concluded that
“[t]hese acts show that, from the earliest organization
of the government, the absolute control over persons
and property, so far as the public was
concerned, was vested in boards or officers, who
exercised a summary jurisdiction over the subject, and
who were not bound to wait the slow course of the law,
and that juries had never been used in this class of
cases. The governor, the mayor, officers under
various names, were the persons intrusted with the
execution of this important public function; and they
were always empowered to act in a summary manner”
(Heister at 670; see also Polinsky v People, 73 NY 65,
69-70 [1878] [“That the Legislature in the exercise of
its constitutional authority may lawfully confer on
boards of the power to enact sanitary
ordinances, having the force of law within the
districts over which their jurisdiction extends, is not
an open question. This power has been repeatedly
recognized and affirmed.”]).
The consolidation of various municipalities into the
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New York City we know today began in 1897 with the passage of the
first Greater New York City Charter (see L 1897, ch 378). That
charter established a statutory framework for the Board that is
notably similar to both the reforms of 1866, and the current City
Charter. It provided for a department of , with a board of
appointed officers as its head (see 1897 City Charter § 1167);
it then specified the powers and duties of each, first in broad
terms, stating as follows:
“All the authority, duty and powers heretofore
conferred or enjoined upon the departments,
boards of , and sanitary officers . . . in
any of the territory now within or hereafter to become
a part of The City of New York . . . are hereby
conferred upon and vested in and enjoined upon, and
shall hereafter be exclusively exercised in The City of
New York by the department of health, and board of
health, created by this act” (1897 City Charter §
As the preceding discussion demonstrates, by the dawn
of the 20th century, the legislature and the courts had long
understood that these consolidated powers were broad in scope,
and — importantly for this appeal — that the Board could act
independently within its mandate from the legislature. Further
reinforcing this interpretation is the language empowering the
Board to create, amend and enforce the Sanitary Code;
1As a point of comparison, note the language empowering the
Commissioner of Health in the City of Brooklyn’s 1888 Charter:
“Said Health Commissioner shall have power to act in a
legislative capacity in regard to all matters pertaining to
public health” (L 1888, ch 583, tit. XII, § 2).
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“[s]aid board of health is hereby authorized and
empowered from time to time, to add to or to alter,
amend or annul any part of the said sanitary code . . .
The board of health may embrace therein all matters and
subjects to which, and so far as, the power and
authority of said department of health extends, not
limiting their application to the subject of health
only” (1897 City Charter § 1172).
This language continued through decades of consolidations and
amendments of the City Charter, renaming of departments and
renumbering of charter provisions (see, e.g., 1901 City Charter
§§ 1168, 1172; 1938 City Charter §§ 556, 558 [b], [c], [f]; 1961
City Charter §§ 556, 558[b], [c], [f]).
Our interpretation of these provisions remained
constant. We repeatedly affirmed the broad nature of the powers
vested in and duties conferred upon the Board by the New York
State Legislature (see e.g. People v Blanchard, 288 NY 145, 147
[1942] [The Sanitary Code (now the Health Code) may, therefore,
“be taken to be a body of administrative provisions sanctioned by
a time-honored exception to the principle that there is to be no
transfer of the authority of the Legislature”]; Matter of Bakers
Mut. Ins. Co. of N.Y. (Department of Health of City of N.Y.), 301
NY 21, 27 [1950] [the legislature has specified that “[t]he
Sanitary Code of the City of New York (now the Health Code) is to
have within that city the force and effect of State law”];
Schulman v New York City Health &; Hosps. Corp., 38 NY2d 234, 237
n 1 [1975] [“[T]he Board of Health has been recognized by the
Legislature as the sole legislative authority in the field of
health regulation in the City of New York”] [emphasis added]).
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As the Board points out in its briefing here, we have often
characterized its powers as “legislative” (see e.g. Grossman v
Baumgartner, 17 NY2d 345, 351 [1966] [“The deduction is clear
from section 558 of the City Charter — which empowers the Board
of Health to legislate in the field of health generally,
including the control of communicable diseases . . . that the
Legislature intended the Board of Health to be the sole
legislative authority within the City of New York in the field of
health regulations as long as those regulations were not
inconsistent with or contrary to State laws dealing with the same
subject matter”] [emphases added], and “well-nigh plenary” (see
People ex rel. Knoblauch v Warden of Jail of Fourth District
Magistrate’s Court, 216 NY 154, 162 [1915]; see also Paduano v
City of New York, 45 Misc 2d 718, 721 [Sup County NY County
1965], affd on opn below 24 AD2d 437 [1st Dept 1965], affd 17 NY
2d 875 [1966], cert denied 385 US 1026 [1967] [lower court cited
to and quoted from the report of the 1936 New York City Charter
Commission, which stated that “[b]y its power to adopt a Sanitary
Code the Board has plenary powers of legislation] [emphasis
Petitioners’ Contentions
This review of statutes and cases puts paid to
petitioners’ key contentions. First, Supreme Court’s
interpretation of the Board’s power was much too narrow. It is
true that the statutes empowering the Board have listed specific
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areas of responsibility, particularly with regard to communicable
diseases, as they do today. But the most historically consistent
reading of this fact is that the legislature has entrusted the
Board to act with a great deal of discretion, while also ensuring
that it will address specified areas of concern, and has provided
procedures for doing so. That the residents of New York City no
longer count typhoid and dysentery among their chief health
concerns is a sign that those scourges have been conquered, not a
ground for preventing the Board from turning its attention to
contemporary public health threats.
Second, petitioners insist that the expansive language
that our opinions have used to describe the Board’s power was
“stray” or “imprecise”; the majority dismisses our depiction of
the Board’s powers in Grossman and Schulman as mere “passing
references” (majority op at 10). But it is impossible to wish
away the large body of caselaw in which we have repeatedly
described the source of the Board’s delegated authority (the New
York State Legislature) and its extent (as broad as it needs to
be to protect public health). While it may sound odd in the
context of modern-day administrative law to call an agency’s
authority “legislative,” the Board’s authority is quite clearly
at least “nearly legislative.” Our many statements to this
effect simply recognized what the state legislature has expressed
through nearly two centuries of consistent statutes.
Turning to more recent history, petitioners argue that
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the significant amendments to the home rule regime enacted in
1964 have somehow altered the Board’s fundamental authority. In
particular, they point out that under these statutes, local
legislatures can pass laws relating to the “safety, health and
well-being of persons” within their jurisdiction (see Municipal
Home Rule Law § 10 [1] [ii] [a] [12]), and that this local power
is not explicitly restricted (see Municipal Home Rule Law § 11
[preempting local laws relating to certain topics such as
education and labor]). But the Home Rule Law’s savings clauses
explicitly preserve the power of any existing “board, body or
officer,” and continue the force and effectiveness of any
existing laws “until lawfully repealed, amended, modified or
superseded” (Municipal Home Rule Law §§ 50 [c], 56 [1]).
Finally, petitioners contend that reforms to the
Charter in 1989 stripped the Board of independent authority, even
in its traditional realm; the majority seems to agree (see
majority op at 8, n 1). The 1989 revisions to the Charter
eliminated the former Board of Estimate from City governance and
established the City Administrative Procedure Act. Petitioners
theorize that because these revisions put such emphasis on the
principle that the Council is the City’s sole legislative
authority, the Board perforce operates under a delegation from
the Council. This, of course, is an argument by implication, as
it does not — because it cannot — rely on any express statement
of law.
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The 1989 revisions were concerned with the particular
problems presented by the former Board of Estimate, and a lack of
minority representation in the Council (see Final Report of the
New York City Charter Revision Commission, Jan 1989 – Nov 1989,
at 1 [1990] [hereinafter Revision Report]). The Board of
Estimate was a body comprised of the mayor, the city comptroller,
the council president and the five borough presidents, and had
been a part of city governance since at least the turn of the
century (see 1897 City Charter § 226). By 1989 the Board of
Estimate was responsible for the budget, land use, franchising
and city agency contracting, giving it extensive power,
particularly at the expense of the Council (Revision Report at
7). This was especially vexing for the City’s substantial
minority populations, which struggled to send representatives to
the top positions that made up this powerful body (see id.). In
1981, residents and voters in Brooklyn brought a lawsuit
challenging the Board of Estimate as unconstitutional. They were
ultimately successful in the United States Supreme Court, which
struck down the charter provision constituting the Board of
Estimate as a violation of the Fourteenth Amendment (see Board of
Estimate of City of New York v Morris, 489 US 688, 690 [1989]).
Accordingly, the Charter Revision Commission focused
its attention on whether to retain the Board of Estimate, and how
to increase representation in city government. In the end, it
recommended the dissolution of the Board of Estimate, an increase
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in Council districts from 35 to 51, and a reapportionment of the
various powers the former body had once wielded (see generally
Revision Report). Nowhere in this report, or in any of the
amendments to the Charter approved by voter referendum in 1988,
is there any reference to the Board or the Department. No doubt
it is true, as petitioners and their supporting amici curiae
assert, that the 1989 revisions wrought important changes in city
governance. But in light of the Board’s very clear history, it
cannot be true that unrelated reforms to the Charter silently
switched the Board’s source of delegated powers from the state
legislature to the Council.
In sum, review of the Board’s history can lead to only
one conclusion: its authority to regulate the public health in
the City is delegated by the New York State Legislature, and its
regulations have the force and effect of state law. The
delegation granted by the state is and always has been very
broad. Of course, nothing prevents the Council from passing
public health legislation if it sees fit to do so. But in light
of the Board’s independent authority, delegated to it by the
legislature, it is of no legal consequence that the Council has
not affirmatively authorized Rule 81.53, or the regulation of
sugary drinks in general.
And until controversy erupted over the Rule, the
Board’s independent authority in the sphere of public health was
well understood. For example, on December 5, 2006 the Board
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adopted a rule banning the use of all but tiny amounts of
artificial trans fat in restaurant in the City, effective
January 10, 2007 (see RCNY § 81.08). The Council some months
later adopted a local law, effective July 1, 2007, amending the
City’s Administrative Code to add provisions consistent with the
Board’s trans fat rule. In short, Rule 81.08 was effective in
January 2007, although the Council had not authorized the
regulation of trans fats at the time.
The majority essentially argues that it cannot be true
that the Board may act independently of the Council in the area
of public health because, otherwise, what would happen if “the
Board . . . pass[ed] a health ‘law’ that directly conflicted with
a local law of the City Council”? The answer is simple: if a
regulation promulgated by the Board in the Health Code conflicts
in some direct way with a local law, the Board’s action trumps
the Council’s.2 While my colleagues in the majority may be
troubled by this state of affairs, it is not their proper role to
change it. The elected state legislature granted the Board the
powers that it exercises. If the electorate of the City of New
York desires to divest the Board of authority to act
independently of the Council in matters of public health, the
appropriate and democratic response is amendment of the City
2The same would be true, of course, if a direct conflict
existed between a local law in the area of public health and some
action taken by the state legislature or the New York State
Department of Health. Preemption is not a novel concept.
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Much of the debate in this case has focused on our
decision in Boreali. This opinion is viewed as having an
outsized impact on New York law, in no small part because it
suggests that we are one of the few jurisdictions with a “strong”
non-delegation doctrine, at least in the eyes of some
commentators (see, e.g., Borchers &; Markell, New York State
Administrative Procedure and Practice § 5.3 at 143-45 [West
1998]; David Super, Against Flexibility, 96 Cornell L Rev 1375,
1387 n 32 [2011]; Gary Greco, Standards or Safeguards: A Survey
of the Delegation Doctrine Among the States, 8 Admin LJ Am U 567,
581 [1994]). Several academic amici curiae have urged the Court
to disavow Boreali, arguing that it puts a stranglehold on
reasonable agency rulemaking. This should not be necessary,
although it is important to understand Boreali properly, and to
avoid applying its reasoning too rigidly.
First, the lower courts and the parties have approached
the four “coalescing circumstances” that persuaded us in Boreali
that the state Public Health Council had gone too far as though
they are four prongs of a hard-and-fast test. They have marched
through these four “Boreali factors,” run the facts of this
appeal through each one, checked “pass” or “fail,” and tabulated
the total. This is not what the decision mandates. While we
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referred to these four factors in some later cases (see Rent
Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 169-70
[1993]; Matter of New York State Health Facilities Assn. v
Axelrod, 77 NY2d 340, 346 [1991]), we have never treated them as
requirements, and, indeed, we have generally not addressed them
at all in separation-of-powers analyses (see e.g. Matter of
Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 864 [2003];
Borquin v Cuomo, 85 NY2d 781, 787 [1995]; Matter of Campagna v
Schaffer, 73 NY2d 237, 243 [1989]). And in those cases where we
have discussed the four Boreali factors, we have not hesitated to
set aside certain of them as irrelevant in the context of the
delegation then under review (see Rent Stabilization Assn., 83
NY2d at 170 [1993] [disregarding legislature’s failure to act on
a particular policy issue]; Health Facilities Assn., 77 NY2d at
348, n 2 [1991] [same]).
The proper approach in any separation-of-powers
analysis is therefore flexible and case-specific, addressing each
agency or executive action in light of the relevant legislative
delegation it invokes (see Borquin, 85 NY2d at 784-85; Clark v
Cuomo, 66 NY2d 185, 189 [1985]; Matter of Levine v Whalen, 39
NY2d 510, 515 [1976]). Boreali represents a situation where a
particular agency had taken a particular action that, in view of
its particular delegation, “usurped the Legislature’s
prerogative” (Boreali, 71 NY2d at 12).
That is not the case here. The legislature has
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directed the Board to oversee and protect the public health of
the City of New York by enacting rules in the Health Code. Those
rules extend to all responsibilities within the competence of the
Department, including “the preservation of human life,” “the
care, promotion and protection of health,” the “control of
communicable and chronic diseases and conditions hazardous to
life and health,” and “supervis[ion] and regulat[ion of] the food
and drug supply of the city and other businesses and activities
affecting public health in the city [to] ensure that such
businesses and activities are conducted in a manner consistent
with the public interest” (2013 City Charter §§ 556 [a] [1], [c]
[2], [c] [9]). This delegation is no less specific than the one
we approved of in Matter of Levine v Whalen (39 NY2d 510 [1976]),
which permitted agency action under a statute whose declaration
of purpose stated that
“[i]n order to provide for the protection and promotion
of the health of the inhabitants of the state, pursuant
to section three of article seventeen of the
constitution, the department of health shall have the
central, comprehensive responsibility for the
development and administration of the state’s policy
with respect to hospital and related services” (id. at
Here, the Board identified a complicated threat to the
health of City residents with many interrelated causes; i.e.,
obesity. As part of a wide-ranging effort to combat this threat,
the Board focused on certain kinds of drinks sold in
establishments over which the Department had sure jurisdiction.
The Board considered several options for addressing the problem,
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and chose one after open public debate, calibrated to the
severity of the threat and its most serious manifestations, and
cognizant of the limits of its enforcement power and the
feasibility of compliance. There can be little doubt that this
was within the Board’s statutory delegation.
Nor is there any legal problem with the method the
Board has chosen to protect the health of City residents; i.e., a
rule that seeks to influence consumer choices by making some
choices marginally less convenient than others. The Appellate
Division admonishes the Board for crafting this type of rule
without an explicit directive to do so, and appears to conclude
that the Board would have acted properly if only it had
completely banned all sugary drinks within the City’s borders.
This is certainly not what Boreali commands, and neither is it
good practice for administrative rulemaking. Safeguarding public
health is a vast and complex responsibility, and any agency
entrusted with this obligation must carefully consider what types
of rules will best address its many disparate aspects.
The Majority’s Boreali Analysis
The majority’s Boreali analysis raises two questions.
First, having rejected the Board’s argument that its authority
and delegated powers are conferred by the state legislature, not
the Council, why is Boreali even relevant? After all, the basis
for the separation-of-powers approach enunciated in Boreali is
article III, section 1 of the New York State Constitution,
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specifying that “the legislative power of this state shall be
vested in the senate and the assembly” (Boreali, 71 NY2d at 9).
Simply put, this constitutional provision, by its very terms,
does not apply to local governments.
The majority cites Under 21, Catholic Home Bur. for
Dependent Children v City of New York (65 NY2d 344 [1985]). In
Under 21 — a case decided three years before Boreali — we held
that Mayor Koch lacked authority to issue an executive order
proscribing discrimination by city contractors on a ground not
covered by any legislative enactment of the Council. But we
recognized in Under 21 that “the pattern of government
established for New York City by the City Charter is not
identical to that of . . . the State of New York” (id. at 356);
and, as illustrated earlier, this is certainly true: the Board’s
powers are delegated by the state legislature, not its local
legislative body, the Council. To my knowledge, before today we
have never applied the Boreali separation-of-powers doctrine
outside the context of state legislative delegations to state
agencies under the state constitution. By extending Boreali to
local governments by virtue of article IX, section 1 (a) of the
constitution, the majority takes a big step without pausing to
consider the consequences.
Second, the majority seemingly advocates a flexible
approach to the four “coalescing circumstances” set out in
Boreali (majority op at 12), in particular, acknowledging that
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“Boreali should not be interpreted to prohibit an agency from
attempting to balance costs and benefits” (id. at 14). But then
the majority instructs that a Boreali analysis should focus on
distinguishing between policy ends and regulatory means, claiming
“[b]y restricting portions, the Board necessarily chose
between ends, including public health, the economic
consequences associated with restricting profits by
beverage companies and vendors, tax implications for
small business owners, and personal autonomy with
respect to the choices of New York City residents
concerning what they consume. Most obviously, the
Portion Cap Rule embodied a compromise that attempted
to promote a healthy diet without significantly
affecting the beverage industry. This necessarily
implied a relative valuing of health considerations and
economic ends” (id. at 15 [emphasis added]).
I agree that this sort of balancing “necessarily
implie[s] a relative valuing of” or making tradeoffs between
health and economic and other considerations and impacts. But
then, that is how an agency carries out a cost-benefit analysis
when deciding if and what sort of regulatory action to take. And
what is inherently wrong with a regulation that seeks to “promote
a healthy diet without significantly affecting the beverage
industry”? Aren’t regulatory agencies supposed to take into
account and reduce insofar as practicable any deleterious sideeffects
of their rules on affected entities?3
3Cost-benefit analysis has long been a staple of state and
federal regulatory processes (see e.g. State Administrative
Procedure Act § 202-a [1] [“In developing a rule, an agency
shall, to the extent consistent with the objectives of applicable
statutes, consider utilizing approaches which are designed to
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– 22 – No. 134
There is no obvious reason why “economic consequences,”
“tax implications for small business owners” and “personal
autonomy” are “ends.” One could just as easily define the “ends”
(as the Board did) to mean the protection of public health from
risks associated with overconsumption of sugary drinks. Economic
consequences, the effects on small business owners and personal
autonomy are simply the kinds of factors the Board properly took
into account when weighing the costs and benefits of different
ways to achieve its public health “ends.”
In a similar vein, the majority goes on to add that
“Significantly, the Portion Cap Rule also
evidenced a policy choice relating to the question of
the extent to which government may legitimately
influence citizens’ decision-making. In deciding to
use an indirect method — making it inconvenient, but
not impossible, to purchase more than 16 fluid ounces
of a sugary beverage while dining at a food service
establishment — the [Board] rejected alternative
approaches, ranging from instruction (i.e., health
warnings on large containers or near vending machines)
to outright prohibition. This preference for an
indirect means of achieving compliance with goals of
healthier intake of sugary beverages was itself a
policy choice, relating to the degree of autonomy a
avoid undue deleterious economic effects or overly burdensome
impacts of the rule upon persons”] [emphasis added]; Exec. Order
No. 13,563 [76 CFR 3821 § 1 [2011] [instructing agencies to
“propose or adopt a regulation only upon a reasoned determination
that its benefits justify its costs,” “tailor its regulations to
impose the least burden on society, consistent with obtaining
regulatory objectives,” and “select, in choosing among
alternative regulatory approaches, those approaches that maximize
net benefits”]; Exec. Order No. 12,866, 58 CFR 51735 § 1 [1993]
[“In deciding whether and how to regulate, agencies should assess
all costs and benefits of available regulatory alternatives,” and
“design . . . regulations in the most cost-effective manner to
achieve the regulatory objective”]).
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– 23 – No. 134
government permits its citizens to exercise and the
ways in which it might seek to modify their behavior
indirectly” (id. at 15-16).
But why is an “indirect means” of achieving an end (healthier
intake) a forbidden policy choice? Making the healthier choice
the simpler choice is one way to reduce overconsumption of sugary
drinks, a category of products that has repeatedly been linked to
weight gain, obesity and a variety of diseases. And the Board
chose this means over other possible approaches as a way to
tailor its regulations so as to impose the least burden on
society — i.e., as the result of run-of-the-mine cost-benefit
With all due respect to my colleagues, their proposed
ends-means test is virtually inscrutable and surely unworkable.
It harks back to long discredited formalistic approaches to
administrative law, which were seemingly objective but instead
served as camouflage for enforcement of judicial preferences. In
this case, a majority of the Court just does not believe it to be
a good idea for the Board to mandate the portion size of sugary
drinks, apparently on the theory that the Council should be the
sole arbiter of “the choices of New York City residents
concerning what they consume” (majority op at 15), at least in
those situations where the choices are not immediately lifethreatening.
I can appreciate this vison of the world as a
philosophical matter, but I see no for it here.
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– 24 – No. 134
Because the Portion Cap Rule does not suffer from any
non-delegation or separation-of-powers infirmity, the proper
standard for our review is whether the regulation is “so lacking
in reason for its promulgation that it is essentially arbitrary”
(see Matter of General Elec. Capital Corp. v New York State Div.
of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004] quoting
Matter of Bernstein v Toia, 43 NY2d 437, 448 [1977]). The Rule
easily passes this test.
Following the submission of public comments on Rule
81.53, the Department responded to the many concerns raised with
a 13-page memorandum explaining in detail why sugary drinks were
targeted, why some drinks were excluded, and why some
establishments were excluded. The memorandum supports these
conclusions with dozens of citations to peer-reviewed academic
research, and the findings of other public health bodies. The
Board debated these concerns and responses, and placed their
deliberations in the public record of their meetings. Dr. Thomas
Farley, the Commissioner of the Department and a certified
pediatrician with 30 years of clinical and research experience,
has submitted in the record of this case an affidavit explaining
in great detail the reasons for creating the Rule and for giving
it the particular form that it has taken. Fourteen public health
and medical associations have submitted amicus curiae briefs to
this Court with further citations and arguments supporting the
Board’s proffered explanations.
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– 25 – No. 134
Petitioners and their supporting amici curiae, as well
as Supreme Court, have countered the extensive documentation
supporting the Board’s reasoning with arguments that the Rule is
rife with loopholes and will never achieve its goal of reducing
obesity. But a rule is not irrational because there are reasons
to disagree with or ways to improve it, or because it does not
completely solve the targeted problem (see Matter of Unimax Corp.
v Tax Appeals Trib. of State of N.Y., 79 NY2d 139, 144 [1992]).
Given the exhaustive record in this case, it is clear that the
Rule is not “lacking in reason for its promulgation.” If it is
ineffective, that will become clear enough in time, and the Board
can correct course in light of new information. But this is no
basis for the courts to strike the regulation down.
What petitioners have truly asked the courts to do is
to strike down an unpopular regulation, not an illegal one.
Indeed, petitioners constantly stress just how unpopular the
Portion Cap Rule is. But if that is so, eliminating, limiting,
or preventing it via political means should present little
obstacle. Importantly, that is the appropriate way for
expressing disagreement and seeking redress. Boreali should not
be an escape hatch for those who are unhappy with a regulation,
and are unable or unwilling to address it with available means.
To sum up, if the People of the City or State of New
York are uncomfortable with the expansive powers first bestowed
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– 26 – No. 134
by the New York State Legislature on the New York City Board of
Health over 150 years ago, they have every right and ability to
call on their elected representatives to effect change. This
Court, however, does not. And there is no question that the
Portion Cap Rule falls comfortably within the broad delegation
granted to the Board by the legislature. The majority fails to
advance any persuasive argument why the judiciary should step
into the middle of a debate over public health policy and
prohibit the Board from implementing a measure designed to reduce
chronic health risks associated with sugary beverages just
because the Council has not chosen to act in this area.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Judge Pigott.
Judges Graffeo, Smith and Abdus-Salaam concur, Judge Abdus-Salaam
in a concurring opinion. Judge Read dissents and votes to
reverse in an opinion in which Chief Judge Lippman concurs.
Judge Rivera took no part.
Decided June 26, 2014
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