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.