16-Ounce “Portion Cap Rule” for Sugary Drinks Invalid

In a full-fledged opinion by Justice Renwick, the First Department determined the “portion cap rule” (limiting the volume of certain “sugary drink” products to 16 ounces) was invalid because the Board of Health “overstepped the boundaries of its lawfully delegated authority” when it promulgated the rule.  In so finding, the First Department applied the analysis used by the Court of Appeals in Boreali v Axelrod, 71 NY2d 1 (1989):

We must … examine whether the Board of Health exceeded the bounds of its legislative authority as an administrative agency when it promulgated the Sugary Drinks Portion Cap Rule. Boreali illustrates when the “difficult-to-demarcate line” between administrative rulemaking and legislative policymaking has been transgressed. In Boreali, the PHC [Public Health Council] promulgated regulations prohibiting smoking in a wide variety of public facilities following several years of failed attempts by members of the state legislature to further restrict smoking through new legislation. Boreali found the regulations invalid because, although the PHC was authorized by the Public Health Law to regulate matters affecting the public health, “the agency stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be” (id. at 9). Boreali relied on four factors in finding that the PHC’s regulations were an invalid exercise of legislative power. First, Boreali found the PHC had engaged in the balancing of competing concerns of public health and economic costs, “acting solely on [its] own ideas of sound public policy” (id. at 12). Second, the PHC did not engage in the “interstitial” rule making typical of administrative agencies, but had instead written “on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance” (id.). Third, the PHC’s regulations concerned “an area in which the legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions” (id.). Boreali [*9]found that the separation of powers principles mandate that elected legislators rather than appointed administrators “resolve difficult social problems by making choices among competing ends” (id.). Fourth, Boreali found that the agency had overstepped its bounds because the development of the regulations did not require expertise in the field of health (id. at 14).  Matter of New York Statewide Coalition … v NYC Dept of Health and Mental Hygiene, 2013 NY Slip Op 05505, 1st Dept 7-30-13