Asked and Answered

Lance Gable on NYC’s Portion Cap Rule

By Steve Thorpe

New York City’s planned ban on sugary drinks larger than 16 ounces was foiled at the last minute recently when the New York State Supreme Court rejected the rule. Justice Milton Tingling Jr. wrote the ban would be “arbitrary and capricious” because it applied only to some drinks. The New York City Board of Health adopted the regulation in September as part of an effort to curb obesity rates. Amicus briefs have been filed supporting the board of health regulation limiting sugary beverage portions. Associate Dean and Associate Professor Lance Gable teaches Public Health Law, Bioethics and the Law, Torts and other health law subjects at Wayne State University Law School. His research addresses the overlap between law, policy, ethics, health and science. He was one of the authors of an amicus brief intended to demonstrate the legality and appropriateness of incremental approaches to public health that local boards of health have made.

Thorpe: Tell us about the amicus brief and how you got involved.

Gable: The amicus brief was the result of discussions among quite a few public health law professors and public health policy organizations. We felt that the New York City portion cap rule was a legitimate exercise of the police powers of the city public health department. The department has very broad statutory authority to regulate in ways designed to protect the public against threats to their health. The amicus brief provides historical and modern examples of local regulation to address a variety of threats to the public’s health and argues that public health regulation often develops incrementally.

Thorpe: On what did the lower court base their decision rejecting the rule?

Gable: The lower court rejected the rule on several bases. First, the judge decided that the Board of Health rule (which prohibited the sale of sugar-sweetened beverages in cup sizes larger than 16 ounces) exceeded the powers of the board of health and that only the legislature (in this case the city council) could authorize this type of restriction. Second, the court found that enacting a ban that didn’t cover all beverages or all establishments serving covered beverages was arbitrary and capricious.

Thorpe: In your brief you talk about the “fragmentation” of public health law. Tell us about that.

Gable: Public health laws — which exist across federal, state and local levels of government and a variety of agencies, including “non-health” agencies like agriculture or transportation — may regulate in areas that affect health. Often, these regulatory powers overlap; in other circumstances, they only address pieces of the overall threat to health. This jurisdictional fragmentation may dictate the scope of authority available to local health departments to regulate some kinds of threats to health. Fragmentation makes it difficult for local health departments to enact comprehensive health regulations on their own. Rather, they may be limited in the steps they can take in addressing complex public health problems and may need to rely on other agencies to enact complementary,
incremental regulations to address other aspects of the problem.

Thorpe: You say in the brief that, traditionally, public health regulatory schemes develop over time. Could you give us an example and explain how it relates to this case?

Tobacco laws and food safety laws provide relevant examples for comparison. To curb tobacco use, state and local health departments tried numerous strategies, including regulating the sale of tobacco products, restricting where tobacco could be used and taxing tobacco products. These approaches were enacted gradually and expanded or modified based on evidence of success or failure. Likewise, food safety laws have been adapted over time as food-borne threats to health have changed and our understanding of effective intervention strategies have evolved. A public health intervention need not address all aspects of a health problem simultaneously. Partial interventions are legitimate even though they don’t address all causes or sources of the public health problem.

Thorpe: How have courts interpreted the powers and duties of boards of health in the past?

Courts have generally interpreted the powers and duties of boards of health very broadly. The seminal case is the U.S. Supreme Court’s 1905 ruling in Jacobson v. Massachusetts, which upheld the power of a local board of health to require a mandatory smallpox quarantine to protect the public’s health even though the requirement imposed restrictions on individuals. Actions by boards of health to address a variety of health threats - from infectious diseases to chronic health conditions to safety and injury prevention - have been upheld. When boards of health have been limited in their actions, it usually has been because the intervention was overly broad or beyond the authority delegated by the legislature.

In this case, the appeals court stated that the Portion Cap Rule exceeded the New York City Board of Health’s delegated authority because the city council had previously tried and failed to pass other measures to curb obesity. However, restricting portion sizes wasn’t a proposal considered by the council. The court’s reasoning would greatly limit the discretion of the board of health to take innovative and effective steps to curb obesity merely because the council hadn’t passed other proposals meant to address obesity. This would be a significant departure from the historical discretion given to boards of health.

One of the criticisms leveled at the rule was that it didn’t regulate all the vendors of sugary beverages, or all sugary beverages, in the same way. How did that affect acceptance of the rule?

Both the trial and appeals court decisions found the fact that not all establishments that served sugar-sweetened beverages were subjected to the portion size cap to be legally problematic. The Portion Cap Rule applies to some, but not all, food service establishments. By agreement with the state Department of Agriculture, the board of health only regulates food service establishments that obtain more than 50 percent of their revenues from sale of food for consumption on the premises. Other establishments such as grocery stores and convenience stores are exempted from the Portion Cap Rule. The rule also includes exemptions for some sugar-sweetened beverages, such as fruit juice and coffee drinks with milk, since the board of health determined that these drinks have nutritional value. The trial court found these exceptions to be “arbitrary and capricious.” The appeals court concluded that these distinctions were beyond the regulatory authority of the board of health, finding that non-health-related policy judgments should be left to the city council. The logic behind these rulings raises a strange paradox, finding incremental regulations to exceed the delegated powers of the board of health because they didn’t go far enough to regulate all establishments and sugary beverages.