New York Court of Appeals Strikes Down Former Mayor Bloomberg’s Soda Restrictions In Appeal Supported by Shapiro, Arato & Isserles Amicus Brief
On June 26, 2014, the New York Court of Appeals affirmed the invalidation of the New York City Board of Health’s Portion Cap Rule, which limited the portion size of certain “sugary drinks” sold at certain establishments. Shapiro, Arato & Isserles LLP filed an amicus brief in support of the legal challenge to the Rule, on behalf of the United States Chamber of Commerce and a coalition of business organizations.
The Portion Cap Rule had been challenged by a number of affected parties, who argued that it was an improper arrogation of legislative power by the Board of Health and that the numerous loopholes and exemptions in the Rule’s scope and application rendered it arbitrary and capricious. The New York Supreme Court, Appellate Division affirmed, holding that the Rule was an improper exercise of legislative power.
In the amicus brief, we argued that the Board of Health ignored industry-led approaches, and in particular, public-private partnerships, which offers superior and more flexible solutions to complex social issues than top-down regulation. Furthermore, the Board of Health violated the core principles of responsible regulation, by exceeding the scope of its authority, failing to ensure that the Rule was likely to reduce obesity rates, ignoring the significant burdens the Rule places on businesses in New York and throughout the country, and unfairly discriminating against some businesses in favor of others.
The New York Court of Appeals affirmed the lower court decision, holding that the Board of Health exceeded its regulatory authority and impermissibly infringed upon the legislative power of the New York City Council. The Court decision is final, and the City’s avenues for appeal have been exhausted.
The amicus coalition included the U.S. Chamber of Commerce, the National Black Chamber of Commerce, the National Federation of Independent Businesses, the National Association of Manufacturers, the Queens Chamber of Commerce, and the New York Association of Convenience Stores. The case is New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. New York City Department of Health and Mental Hygiene, et al., No. APL-2013-00291.