Government Regulation -- 2014



New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health and Mental Hygiene   (New York Court of Appeals)

Challenging New York City's portion cap on certain drinks

When New York's Board of Health lost in the appeals court in a case challenging the city's portion cap rule that bans certain sales of large sugary drinks, it appealed to the Court of Appeals, New York's highest court. The NAM participated as an amicus in the lower courts, summarized here.

The NAM filed another amicus brief in this final appeal, arguing that the Board failed to consider superior options to its top-down regulation, namely industry-led solutions and public-private partnerships. We also challenged the authority of the Board to engage in the cost-benefit analysis that this kind of regulation requires, and that the solution it came up with is not sufficiently connected to its objective. The process was also not open and transparent, and the regulation draws arbitrary lines and creates nonsensical loopholes that undercut its value.

On June 26, 2014, the high court ruled that the NY City Board of Health exceeded its regulatory authority, engaging in law-making without any legislative delegation or guidance from the City Council. It found that the Board of Health has no inherent legislative authority, but may only adopt rules necessary to carry out authority delegated to it by federal, state or local law. By deciding to reduce sugary beverage consumption by limiting container size, the Board made value judgments balancing public health, economic consequences, tax implications for small business, and personal autonomy -- choices reserved for the legislative branch.

This is yet another example of a government agency assuming power without the authority to do so. Whether at the city or local level, or at the federal level from agencies like the Environmental Protection Agency or the Department of Labor, the NAM will continue to challenge such overreach and make sure that the courts step in to keep the executive branch within its constitutional bounds.


Related Documents:
NAM brief  (April 25, 2014)

 


Government Regulation -- 2013



New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health and Mental Hygiene   (New York Court of Appeals)

Challenging New York City's portion cap on certain drinks

In 2012, New York City implemented a portion cap rule that bans certain sales of large sugary drinks. Several groups sued, and a trial judge ruled that the Board of Health did not have the authority to limit or ban a legal item under the guise of "controlling chronic disease," and this kind of legislative power is reserved to the City Council. He also found the rule to be arbitrary and capricious, because of uneven enforcement and loopholes which gut its purpose.

The City appealed. The NAM and other business groups joined in an amicus brief supporting the result, calling the ban "a reckless, ill-conceived, top-down regulation that has little chance of meaningfully affecting the Board's purported health objectives." Raising concerns about the far-reaching implications and public policy consequences of New York's rule across the country, we argued that rules like this are costly to businesses and consumers, balkanizing economies and disrupting finely tuned distribution chains.

We argued that the Board failed to adhere to fundamental principles of responsible regulation, including consideration of costs and benefits, ensuring that the regulation addresses the real problem and is fairly designed and implemented, and the process is inclusive and transparent.

We offered a litany of examples of voluntary initiatives led by the private sector that more effectively and fairly improve national health and wellness. Public-private partnerships can help create the right mix of incentives and options to promote a healthy lifestyle and address national obesity trends.

On July 30, 2013, the appeals court agreed that the Board of Health acted outside the bounds of its delegated authority, in violation of the separation of powers in the state constitution. This is another example of regulatory agencies trying to regulate without legislative approval.


Related Documents:
NAM amicus brief  (April 25, 2013)