Shapiro Arato Files Amicus Brief in Successful Challenge to Mayor Bloomberg’s Soda Restrictions

On July 30, 2013, the New York Supreme Court, Appellate Division affirmed the invalidation of the New York City Board of Health’s rule limiting 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 Portion Cap Rule, on behalf of the United States Chamber of Commerce and a coalition of business organizations.

The coalition of parties challenging the Portion Cap Rule argued that the rule was an improper arrogation of legislative power by the Board of Health and that the rule was arbitrary and capricious under New York administrative law as a result of the numerous loopholes and exemptions in the rule’s scope and application. The New York Supreme Court for New York County agreed on both grounds, and permanently enjoined the implementation and enforcement of the Portion Cap Rule. In the amicus brief, we argued that the Board of Health violated the basic principles of responsible regulation, by failing to establish that the rule was likely to reduce obesity rates, ignoring the significant burdens the rule places on businesses both in New York City and nationwide, and effectively discriminating against certain businesses in favor of others. The brief also demonstrated that the Board ignored more viable alternatives, particularly industry-led approaches which provide a more flexible and comprehensive option than regulation.

The New York Supreme Court, Appellate Division affirmed the lower court’s decision, holding that in passing the Portion Cap Rule, the Board of Health improperly exceeded the bounds of its authority.

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 Greater Harlem Chamber of Commerce, the Staten Island Chamber of Commerce, the Manhattan 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. 653584/2012.

Alexandra A.E. Shapiro, Marc E. Isserles, and Chetan A. Patil co-authored the brief. Additional information can be found here.