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.