Fordham Law


Legal Battle Over Limits on Sugary Drinks May Outlast Mayor’s Tenure

Nestor Davidson in NY Times, March 12, 2013

Media Source

A Manhattan judge’s ruling on Monday striking down New York City’s limits on large sugary drinks set the stage for a test in the state’s highest court of one of Mayor Michael R. Bloomberg’s signature policies.

 But if the case over the soda wars was shaping up as a landmark of the Bloomberg administration, the timing of the legal battle suggested that a definitive ruling was not likely to come before Mr. Bloomberg leaves office on Dec. 31.

City lawyers filed papers in an intermediate appeals court in Manhattan on Tuesday and Mayor Bloomberg weighed in, saying the ruling in his anti-obesity campaign by the State Supreme Court justice, Milton A. Tingling, was “totally wrong.”

Lawyers said it seemed inevitable that after a ruling from the appeals court in Manhattan, the case would end up in the state’s highest court, the Court of Appeals in Albany.

“It raises issues about the power of the mayor to take action without the City Council,” said Richard Briffault, a specialist in state and local government law at Columbia Law School. “It goes to the allocation of power within the city government.”

As they sketched out court schedules Tuesday, lawyers said a definitive ruling was not likely in the nine and a half months remaining in Mr. Bloomberg’s term.

City lawyers said that on Wednesday they would ask the Appellate Division of State Supreme Court in Manhattan to hear arguments on an expedited basis. But even that relatively speedy track could mean a decision might not come until the fall. An appeal then to the Court of Appeals might bring arguments in Albany by December, which could mean a ruling after Mr. Bloomberg’s successor takes office.

“This could take a good year and a half,” said Nestor M. Davidson, director of a center at Fordham Law School that focuses on the law and its effect on cities. In the meantime, there has been no request from the city for a stay of the judge’s ruling, so the planned rules that would have limited the size of sugary drinks to 16 ounces at restaurants, theaters and food carts will not go into effect as the legal battle unfolds.

Soft-drink and restaurant groups were ready for a prolonged fight. “We feel the justice’s decision was strong,” said Christopher Gindlesperger, a spokesman for the American Beverage Association.

The decision by Justice Tingling included language that some lawyers took as a broad attack on Mr. Bloomberg’s style of governance, which has frequently bypassed the cumbersome legislative process for environmental and health initiatives. He noted that the rules on sugary drinks were not presented to the Council for approval.

“One of the fundamental tenets of democratic governance here in New York, as well as throughout the nation is the separation of powers,” the ruling said. “No one person, agency, department or branch is above or beyond this.”

The judge laid out precedents that he said had required the decision he made. In particular, he relied on a 1987 ruling from the Court of Appeals that centered on a state agency’s rule banning indoor smoking after the Legislature had failed to enact such a law.

In his Monday ruling, Justice Tingling noted that the Court of Appeals struck down the anti-indoor-smoking rule in the 1987 ruling, Boreali v. Axelrod. That decision described four factors courts should consider when deciding whether an executive-branch agency improperly invaded the province of a legislative body.

Justice Tingling concluded that when it adopted the rule limiting sugary drinks, the city’s health department violated three of those four factors. One factor described in the 1987 ruling, for example, was whether the executive-branch agency took action after a legislative body considered and did not enact such a rule.

Justice Tingling wrote that the issue of what contribution sugary drinks make to obesity and other health problems had been “the subject of past and ongoing debate” within the city and state legislative bodies. He concluded that the Bloomberg administration’s rule usurped the power of the City Council.

Some public-health lawyers said Tuesday that Justice Tingling’s analysis laid out a crimped view of the powers of public health officials. He wrote that the health department’s area of concern was the protection against “communicable, infectious and pestilent diseases.”

As they began to frame the issues of their appeal Tuesday, the city’s lawyers indicated they would frame the case not in terms of mayoral power but as a debate about public health. They noted that the health department had previously passed rules banning lead paint and requiring window guards.

In an interview, the city’s corporation counsel, Michael A. Cardozo, argued that Justice Tingling’s decision “misunderstands the role of the Board of Health” that, he said, “has very, very broad power.”