New York's Big Soda Ban and the Nanny State That Lost in Court

Let me describe a public policy to you and see whether you can spot the problem. A city decides that a 20-ounce soda is a threat to public order, but a 16-ounce soda is perfectly safe. You may buy two 16-ounce sodas. You may ask for a free refill. You may walk across the street to the convenience store and buy a 64-ounce monster that could anchor a small boat. But if you walk up to the counter at the movie theater and ask for one 20-ounce cup, the full power of the municipal government will descend upon the theater owner with a clipboard.

That, folks, was New York City's big soda ban. It was sold as a bold stand for public health. It collapsed in court, and the reason it collapsed has almost nothing to do with soda. It collapsed because of a principle older than the city: the people who make the laws must be the people we elect.

What the rule said

In 2012 New York City's mayor proposed a limit on the size of sugary drinks sold at certain food businesses, and the city's Board of Health adopted it that September. The rule capped the size of a sweetened beverage at 16 ounces when it was sold or served at food service establishments: restaurants, delis, movie theaters, stadium concession stands, street carts. It was scheduled to take effect in March 2013.

The rule was aimed at sugar-sweetened drinks, and it carved out a list of exceptions. Diet drinks were out. Drinks that were mostly milk were out. Drinks that were mostly juice were out, and so were alcoholic drinks. And the places that sold the most drinks by the gallon in many neighborhoods, the grocery stores and the convenience stores, fell outside the rule, because the city's health department did not regulate them in the same way. The state did.

Then came the second loophole, and this one is my favorite. Nothing in the rule stopped a restaurant from giving you a free refill. Nothing stopped you from ordering two drinks. The rule regulated the size of the cup, not the amount of the soda you drank. A policy meant to change behavior that left every path to the same behavior wide open is a policy meant to be seen, not to work.

The coverage

You may remember how the story was covered. For months it was a lifestyle fight: the mayor's critics against the mayor's defenders, the "Big Gulp" jokes against the earnest health researchers. The question the coverage asked, over and over, was whether sugary drinks are bad for you and whether the city had a right to care. Those are fine questions for a dinner party. The important question for a law class was a different one, and the coverage largely skipped it: who in New York City has the power to write this rule?

I'd argue that framing mattered. When a story is told as "do you like soda or do you like the government telling you what to do," the audience picks a team and the structure of government goes unexamined. The framing also did a favor to the rule's sponsors. It let them argue about nutrition, where they felt strong, instead of about authority, where they were weak. And authority is exactly where the courts took it.

The trial court, March 2013

The beverage industry, restaurant and theater groups, and several other plaintiffs sued, and the case came before a trial judge in New York County. The day before the rule was to take effect, in March 2013, Justice Milton Tingling struck it down.

His ruling did not say that soda is harmless. It said the rule was arbitrary and capricious, a legal term of art meaning that it fails to hang together logically, and it also said the Board had overstepped its authority and run afoul of the separation of powers. Look at the exceptions, the court reasoned. A rule that regulates one kind of cup and spares the next kind is not drawn by principle. It is drawn by whim. The rule applied to some places that sold a given drink and not to others that sold the same drink, and it let customers get around the cap by asking for a refill. A regulation that carves its own purpose into pieces does not deserve a presumption of rationality.

The city appealed. The intermediate appellate court, the Appellate Division, affirmed in the summer of 2013. The case went to the state's highest court, the New York Court of Appeals.

The Court of Appeals, June 2014

On June 26, 2014, the Court of Appeals decided New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene. It affirmed the lower courts, and it did so on a ground that matters far beyond the beverage aisle.

The court held that the Board of Health had exceeded its authority. The Board, it said, is an appointed body that the city charter gives power to regulate in the interest of public health. But it had used that power to set a broad new policy of its own, a policy that belonged to the elected legislators, the City Council. In a sense it had stopped administering the law and started making it. That, the court held, violated the separation of powers.

How did the court decide that? It relied on a framework from an earlier case, Boreali v. Axelrod, decided in 1987. In Boreali, a state public health council had tried to ban smoking in many public places on its own authority, and the Court of Appeals told it the legislature had to do that. From that case the courts drew a handful of questions to ask when an agency's rule looks like lawmaking in disguise:

• Did the agency balance a wide range of competing concerns, such as economic and social interests, instead of applying a narrow expertise?
• Did it write on a clean slate, building a new comprehensive scheme, instead of filling in gaps in a framework the legislature supplied?
• Had the legislature considered the subject and failed to act, so that the agency was doing what the elected body had declined to do?
• Was the rule a matter of technical expertise, or a policy choice that any elected official could weigh?

The Board of Health, the court found, had balanced health concerns against the economic costs and the choices of consumers, and had built its own scheme with its own exceptions, with no statute setting a policy on sugary drinks to guide it. The court also pointed to earlier proposals on sugary drinks, including taxes, that the City Council and the state legislature had not enacted, which made the rule look uncomfortably like an end run. The court treated its factors as overlapping guides, not a rigid checklist, and did not need to reach the fourth, on technical expertise. I recommend that you read the opinion, which is short and clear, and form your own view on how it applied those factors.

It was never about soda

Here is the thing I most want you to take away. Notice what the court did not say. It did not hold that the city cannot ever regulate sugar. It did not say the mayor was a villain or that obesity is a fake concern. It said that the decision belonged to the City Council, where members who face the voters every few years would have to cast a recorded vote and explain it to their neighbors.

That is the whole point of the structure. A law that passes through an elected body can be fought, amended, defeated and then punished at the ballot box. A rule written by an appointed board can be fought only in court, and the board's members cannot be thrown out. The accountability that makes a free people free is the accountability of the ballot. Strip it away, and the soda is the least of your worries. Today's rule is about soda. Tomorrow's, with the same procedure, is about whatever the appointed experts of the day regard as a threat to the public health.

The constitutional anchor

The Founders understood this in the plainest terms. The Constitution's first operative sentence, in Article I, Section 1, says: "All legislative Powers herein granted shall be vested in a Congress of the United States." New York's own constitution says much the same for the state: the legislative power of the state shall be vested in the senate and assembly. The idea is the same at every level. The power to make rules that bind the whole community has to rest with those who answer to the community.

James Madison explained why in Federalist 47. He wrote that the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny. He was arguing about the national government, but notice the logic. The danger is not that a particular power-holder is bad. The danger is that when the same hands write the rule, enforce the rule and judge the dispute, no outside check remains.

An appointed board that writes a rule with the force of law, enforces it through inspectors and decides who has violated it is a small-scale version of precisely that accumulation. This is why the administrative state, as it grew over the twentieth century, is a constitutional problem and not merely a policy quarrel. Seven Things Everyone Believes About the Federal Bureaucracy That Aren't So takes on the common misconceptions, and The Administrative Procedure Act of 1946 Was a Truce, and It Still Shows shows how Congress tried to hem agencies in.

The numbered argument

Let me put the case in order, the way a lawyer would.

1. Lawmaking is a power reserved to elected representatives. The constitutions of the nation and of New York say so, and the structure of republican government depends on it.

1. Delegation has limits. A legislature may authorize an agency to fill in details under a framework. It may not hand off the basic policy choices, especially choices where the competing interests are economic and moral and not technical.

1. The soda rule was a policy choice. It weighed public health against consumer liberty and business interests, and it drew its own lines. The Board of Health was not applying a technical standard handed to it. It was selecting among visions of how New Yorkers ought to live.

1. The legislature had not authorized it. The elected bodies had looked at sugary-drink measures, taxes among them, and had not enacted them. The agency could not substitute its judgment for theirs and then call the result an application of existing law.

1. Therefore the rule was invalid. And it was invalid for the best of reasons: not because the policy was foolish, though it was, but because the process was wrong.

This is why the case is a pillar of the argument that unelected boards cannot legislate. It also explains why that argument does not depend on whether you like the policy. A conservative who objects to this rule should object just as firmly to an unelected board doing something he favors. A principle is not a principle if it applies only when you are losing.

The strongest case for the rule

Fairness requires me to state the other side's best argument, so here it is.

The defenders of the ban said the city was facing a serious and costly public health problem. They said that sugary drinks are a large source of added sugar in the diet, that portion sizes had grown, and that a modest cap on cup size was a mild nudge, not a prohibition. Nobody was forbidden to drink soda. Nobody was fined for buying two cups. The Board of Health had a statutory duty to protect public health, and it had used its expertise to craft a narrow intervention. The city also had a long record of using its health board to regulate in the public interest, including rules on restaurant practices that stood. Surely, the argument goes, courts should defer to health experts and not second-guess them.

That argument is not frivolous, and I do not need to deny that the city's officials believed what they said. But it fails on its own terms for three reasons.

First, expertise answers the question of what works, not the question of who decides. Experts can tell us what a drink contains. They cannot tell us how much of our liberty to trade for a marginal health gain. That is a value judgment, and in a republic value judgments are made by voters and their representatives.

Second, the "mild nudge" defense undercuts itself. If the cap was so mild that it barely changed behavior, given the free refills and the convenience-store exemption, the case for overriding the normal legislative process was weak. If it was strong enough to matter, it was strong enough to need a vote.

Third, deference to experts is a doctrine with no natural stopping point. The same reasoning that would let an appointed board cap soda would let it cap salt, regulate portions at every restaurant, or tell you what to put in a lunchbox. Each step would be defended by an expert in a white coat. Each step would be small. The courts drew a line, and I think they drew it in the right place.

What followed

After the Court of Appeals ruling, the cap never took effect. Other cities and some states have since chosen different approaches to sugary drinks, including taxes passed by elected councils and legislatures. Whatever you think of those, they are the right kind of measure: a recorded vote by people who answer to the public. That is the proper way to disagree about soda.

The lesson is not confined to New York. Across the country, boards, commissions and agencies issue rules that bind the public on subjects the legislature never decided. Each has a sympathetic goal. Each arrives with a study. The question to ask every time is the one the Court of Appeals asked: did the people we elected decide this, or did someone we did not?

And let me say a word about the humor of it all, because there is some. A city that could not close the convenience-store gap or ban the refill, but could make a theater owner redesign his cups, was a city confusing the look of action with the substance of it. Healthy Habits Are a Matter of Character, Not a Government Program makes the larger point about where habits come from.

Why it matters to a family

Picture a family in Brooklyn, a hypothetical one. The parents run a small restaurant. Under the rule, they would have had to buy new cups, retrain staff, post notices and risk fines, while the big grocery down the street went on as before. That is the practical face of rules that fall unevenly: they punish the small, local, rule-following business and spare the one the rule did not reach.

Now picture the same family reading the news the next day. They are told the ban is about health. They know it is about who gets to decide. And the second question is the one that determines whether they have a say in the next rule.

The case in brief

1. New York's 2012 rule capped sugary drinks at 16 ounces in some places but not others, and allowed refills, so it was riddled with exceptions.
2. A trial judge struck it down in March 2013, and the state's highest court affirmed in June 2014 in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene.
3. The ground was separation of powers: an appointed board made policy that belonged to the elected City Council, applying the factors from Boreali v. Axelrod.
4. The Founders' principle, from Article I, Section 1 to Madison in Federalist 47, is that those who make binding rules must answer to the voters.
5. The right path to disagree about soda, or anything else, is a recorded vote by elected legislators, not a rule from an appointed board.

What you can do: find out which local board or commission in your city or county has rulemaking power, read its most recent agenda, and ask your elected council member in writing which of its rules the council itself has voted on.