Shapiro, Arato & Isserles Files Amicus Brief Opposing Mayor Bloomberg’s Soda Restrictions

On April 25, 2013, Shapiro, Arato & Isserles LLP filed an amicus brief in the New York Supreme Court, Appellate Division on behalf of the U.S. Chamber of Commerce and a coalition of business organizations in support of the legal challenge to New York City’s controversial Portion Cap Rule.

On September 13, 2012, the New York City Board of Health enacted a rule limiting the portion size of certain “sugary drinks” sold at certain establishments to 16 fluid ounces. The rule contained several loopholes, including exemptions for particular full calorie beverages and particular establishments, such as grocery stores, convenience stores, gas stations, and pharmacies. A coalition of parties challenged the validity of the rule, arguing that it was an improper exercise of legislative power by an unelected board and that the rule was arbitrary and capricious under New York administrative law. The New York Supreme Court for New York County agreed, and permanently enjoined the implementation and enforcement of the Portion Cap Rule.

In the amicus brief, we argue that in enacting the Portion Cap Rule, the Board of Health violated core principles of responsible regulation. The Board of Health failed to demonstrate that the rule was likely to reduce obesity rates and ignored the substantial costs the rule would impose on businesses in New York City and nationwide. In addition, because of the rule’s loopholes and exemptions, it effectively prejudiced some businesses in favor of others. The brief also highlights the Board’s failure to consider industry-led approaches to obesity, including public-private partnerships, which present more flexible and comprehensive alternatives to heavy-handed, top-down regulation.

The amicus coalition includes 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.