Reproduced on Recycled Paper
COURT OF APPEALS
STATE OF NEW YORK
APL 2013-00291
Patrick J. Sheehan
WHATLEY KALLAS, LLP
1180 Avenue of the Americas,
20th Floor
New York, NY 10036
Telephone: (212) 447-7060
Facsimile: (800) 922-4851
psheehan@whatleykalas.com
Seth E. Mermin
Julia Z. Marks
PUBLIC GOOD LAW CENTER
3130 Shatuck Avenue
Berkeley, California 94705
Telephone: (510) 393-8254
tmermin@publicgoodlaw.org
Atorneys for Amici Curiae
NEW YORK STATEWIDE COALITION OF HISPANIC CHAMBERS
OF COMMERCE; THE NEW YORK KOREAN-AMERICAN GROCERS
ASSOCIATION; SOFT DRINK AND BREWERY WORKERS UNION,
LOCAL 812, INTERNATIONAL BROTHERHOOD OF TEAMSTERS;
THE NATIONAL RESTAURANT ASSOCIATION; THE NATIONAL
ASSOCIATION OF THEATRE OWNERS OF NEW YORK STATE; and
THE AMERICAN BEVERAGE ASSOCIATION,
Petitioners-Respondents,
For a Judgment Pursuant to Articles 78 and 30 of the Civil Practice Law and Rules
– against –
THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL
HYGIENE; THE NEW YORK CITY BOARD OF HEALTH; and DR.
THOMAS FARLEY, in his Official Capacity as Commissioner of the New
York City Department of Health and Mental Hygiene,
Respondents-Appelants.
BRIEF OF AMICI CURIAE
NATIONAL ALLIANCE FOR HISPANIC HEALTH;
ASSOCIATION OF BLACK CARDIOLOGISTS;
HARLEM HEALTH PROMOTION CENTER; NEW YORK STATE
AMERICAN ACADEMY OF PEDIATRICS, CHAPTER II; UNITED
PUERTO RICAN ORGANIZATION OF SUNSET PARK; HARLEM
CHILDREN’S ZONE; THE CHILDREN’S AID SOCIETY;
NATIONAL CONGRESS OF BLACK WOMEN, INC.;
MONTEFIORE MEDICAL CENTER; AND
THE MOUNT SINAI HEALTH SYSTEM,
IN SUPPORT OF RESPONDENTS-APPELLANTS
i
CORPORATE DISCLOSURE STATEMENT
In compliance with Rule 500.1(f) of the Rules of Practice for the
Court of Appeals of the State of New York, Plaintiffs state the following:
1. National Alliance for Hispanic Health is a not-for-profit
organization under 26 U.S.C. § 501(c)(3). It has no corporate parents,
subsidiaries, or affiliates.
2. The Association of Black Cardiologists (ABC) is a not-for-
profit organization under 26 U.S.C. § 501(c)(3). ABC has no parents,
subsidiaries or affiliates.
3. The Harlem Health Promotion Center is an academic
research center under the auspices of Columbia University Mailman
School of Public Health. Columbia University is a not-for-profit
organization under 26 U.S.C. § 501(c)(3). The Harlem Health Promotion
Center has no subsidiaries or affiliates.
4. New York State American Academy of Pediatrics, District II,
is a not-for-profit organization under 26 U.S.C. § 501(c)(3). It has no
corporate parents, subsidiaries, or affiliates.
5. United Puerto Rican Organization of Sunset Park (UPROSE)
is a not-for-profit organization under 26 U.S.C. § 501(c)(3). It has no
corporate parents, subsidiaries, or affiliates.
ii
6. Harlem Children’s Zone, Inc., is a not-for-profit organization
under 26 U.S.C. § 501(c)(3). The organization has the following
affiliates: Rheedlen 125th Street, LLC; HCZ-Promise LLC; Harlem
Children’s Zone Promise Academy Charter School, and Harlem
Children’s Zone Promise Academy II Charter School.
7. The Children’s Aid Society is a not-for-profit organization
under 26 U.S.C. § 501(c)(3). It has no corporate parents, subsidiaries, or
affiliates.
8. The National Congress of Black Women, Inc., is a not-for-
profit organization under 26 U.S.C. § 501(c)(3). It has no corporate
parents, subsidiaries, or affiliates.
9. Montefiore Medical Center is a not-for-profit organization
under 26 U.S.C. § 501(c)(3).
Montefiore Health System, Inc., is the sole
corporate member of Montefiore Medical Center and is also a New York
not-for-profit corporation under 26 U.S.C. § 501(c)(3). Montefiore
Medical Center has the following subsidiaries and affiliates: Montefiore
North Ambulatory Care Center, Inc.; Montefiore HMO, LLC; Montefiore
New Rochelle Hospital; Montefiore Mount Vernon Hospital; Scheffer
Extended Care Center; Montefiore SS Holdings, LLC; Montefiore MV
Holdings, LLC; Montefiore HA Holdings, LLC; Montefiore Information
iii
Technology, LLC; Montefiore Foundation, Inc.; Montefiore Insurance
Company, Inc.; MMC Corp; Broadway 5037, LLC; Gunhill MRI, PC;
Mosholu Preservation Corp.; MMC Medical Associates, P.C.; Montefiore
Consolidated Ventures, Inc.; Bronx Accountable Healthcare Network,
IPA, Inc. – Pioneer ACO; The Montefiore IPA, Inc.; Montefiore
Behavioral Care, IPA No. 1, Inc.; MMC GI Holdings East, Inc.; MMC GI
Holdings West, Inc.; University Behavioral Associates, Inc.; MMC
Contract Mgmt. Org. No. 1, Inc.; Montefiore Comprehensive Health
Services, Inc.; CMO The Care Mgmt. Co., LLC; Montefiore Community
Network, LLC; MMC Initiatives, LLC; Montefiore Proton Acquisition,
LLC; MMC Residential Corp. 1, Inc.; and Montefiore Hospital Housing,
Section II, Inc.
10. The Mount Sinai Health System is a New York not-for-profit
organization and its application for exemption from federal tax as a 501(c)
entity is pending. The Mount Sinai Health System is a direct parent of the
Icahn School of Medicine at Mount Sinai and an indirect parent of the
four hospitals within the system: The Mount Sinai Hospital, Beth Israel
Hospital, St. Luke’s Roosevelt Hospital and New York Eye and Ear
Infirmary.
iv
TABLE OF CONTENTS
STATEMENTS OF INTEREST OF AMICI CURIAE .................................. xi
PRELIMINARY STATEMENT .................................................................... 1
ARGUMENT .................................................................................................. 4
I. OBESITY AND OTHER FORMS OF DIET-RELATED DISEASE
ARE A CRITICAL PROBLEM FACING THE NATION AND THE
CITY, ESPECIALLY IN UNDERSERVED ETHNIC
COMMUNITIES .................................................................................. 4
A. The Country Faces a Crisis of Obesity, Diabetes, and
Related Chronic Disease. ......................................................... 4
B. The Crisis Profoundly Affects New York City. ...................... 7
C. The Scourge Of Diet-Related Disease Has
Disproportionately Affected Underserved Communities. ....... 9
II. CONSUMPTION OF SUGARY DRINKS CONTRIBUTES
SIGNIFICANTLY TO OBESITY, DIABETES, AND OTHER
FORMS OF CHRONIC DISEASE. .................................................... 10
III. CONSUMPTION OF SUGARY DRINKS, DRIVEN BY
TARGETED MARKETING, IS SIGNIFICANTLY HIGHER
AMONG YOUTH AND ETHNIC MINORITY POPULATIONS. ... 15
IV. REDUCING CONSUMPTION OF SUGARY DRINKS BY
DECREASING THE DEFAULT PORTION SIZE CAN HELP
STEM THE TIDE OF OBESITY AND DIET-RELATED
DISEASE. ........................................................................................... 24
CONCLUSION ............................................................................................. 27
v
TABLE OF AUTHORITIES
CASES
Consolation Nursing Home, Inc. v. Comm’r of N.Y. State Dep’t of Health,
85 N.Y.2d 326 (1995) .................................................................................................. 28
N.Y. Statewide Coalition of Hisp. Chambers of Comm. v. N.Y.C. Dep’t of Health and
Mental Hygiene,
970 N.Y.S.2d 200, 205 (2013). ...................................................................................... 3
STATUTES
Laws of New York - Civil Practice Law and Rules § 7803(3) ........................................ 28
N.Y. City Health Code § 81.53 ................................................................................. passim
ARTICLES, REPORTS, AND STUDIES
Basics About Childhood Obesity, Ctrs. for Disease Control and Prevention
(Apr. 27, 2012) ............................................................................................................... 5
Berger, Magdalena, et al., Obesity in K–8 Students - New York City, 2006–07 to
2010–11 School Years, MORB. AND MORT. WEEKLY REP, Dec. 16, 2011 ..................... 8
Berkey, Catherine S., et al., Sugar-Added Beverages and Adolescent Weight Change,
12 OBESITY RES. 778 (2004) ........................................................................................ 24
BRONX, BROOKLYN AND HARLEM DISTRICT PUBLIC HEALTH OFFICES,
Sugary Drinks: How Much Do We Consume? A Neighborhood Report (2011) ......... 17
Caprio, Sonia, Calories from Soft Drinks – Do They Matter?
367 N. ENGL. J. MED. 1462 (2012) .............................................................................. 13
CHANGELAB SOLUTIONS, Breaking Down the Chain:
A Guide to the Soft Drink Industry (2012) ............................................................. 17, 18
Comment, Pastor Brian L. Carter, President, Borough of Brooklyn Ecumenical
Advisory Group ........................................................................................................... 27
de Koning, L., et al., Sweetened Beverage Consumption, Incident Coronary Heart
Disease, and Biomarkers of Risk in Men, 125 CIRCULATION 1735 (2012) ................. 12
vi
de Ruyter, Janne C., et al., A Trial of Sugar-Free or Sugar-Sweetened Beverages and
Body Weight in Children, 367 NEW ENG. J. MED. 15 (2012) ....................................... 25
Ebbeling, Cara, et al., A Randomized Trial of Sugar-Sweetened Beverages and
Adolescent Body Weight, 367 NEW ENG. J. MED. 1407 (2012) .................................... 25
Epiquery: NYC Interactive Health Data System - Community Health Survey 2011,
N.Y.C. DEP’T OF HEALTH AND MENTAL HYGIENE (2011) ........................................... 10
FED. TRADE COMM’N, Marketing Food to Children and Adolescents: A Review of
Industry Expenditures, and Self-Regulation (2008) .................................................... 17
Finkelstein, Eric A., et al, Annual Medical Spending Attributable to Obesity:
Payer- and Service-Specific Estimates, 28 HEALTH AFF. w822 (2009) ........................ 7
Fisher, Jennifer O., et al., Children’s Bite Size and Intake of an Entrée are Greater
With Large Portions Than With Age-Appropriate or Self-Selected Portions,
77 AM. J. CLINICAL NUTR. 1164 (2003) ....................................................................... 23
Fisher, Jennifer O., et al., Effect of Portion Size and Energy Density on Young
Children’s Intake at a Meal, 88 AM. J. CLINICAL NUTR. 174 (July 2007) .................. 22
Flegal, Katherine M., Prevalence of Obesity and Trends in the Distribution of Body
Mass Index Among US Adults, 1999-2010, 307 J. AM. MED. ASS’N 491 (2012) ........... 4
Flood, Julie E., The Effect of Increased Beverage Portion Size on Energy Intake
at a Meal, 106 J. AM. DIET. ASS’N 1984 (2006). ................................................... 23, 26
Fung, Teresa T., et al., Sweetened Beverage Consumption and Risk of Coronary
Heart Disease in Women, 89 AM. J. CLINICAL NUTR. 1037 (2009) ............................ 12
Grier, Sonya A., African American & Hispanic Youth Vulnerability to Target
Marketing: Implications for Understanding the Effects of Digital Marketing,
BERKELEY MEDIA STUD. GROUP (2009) ...................................................................... 18
Grier, Sonya A., and Kumanyika, Shiriki, The Context for Choice: Health Implications
of Targeted Food and Beverage Marketing to African Americans,
98 AM. J. PUB. HEALTH 1616 (2008) ........................................................................... 19
Hu, Frank B., Resolved: There Is Sufficient Scientific Evidence That Decreasing
Sugar-Sweetened Beverage Consumption Will Reduce the Prevalence of Obesity
and Obesity-Related Diseases, 14 OBESITY REVS. 606 (2013) .................................... 25
Khanolkar, Manish P., et al., The Diabetic Foot, 101 QJM 685 (2008) ............................ 2
vii
Koplan, Jeffrey P., et al., eds., COMM. ON PREVENTION OF OBESITY IN CHILDREN AND
YOUTH, Preventing Childhood Obesity: Health in the Balance (2005) ......................... 6
Kumanyika, Shiriki K., and Grier, Sonya, Targeting Interventions for Ethnic Minority
and Low-Income Populations, 16 FUTURE CHILD 187 (2006) ..................................... 20
Maersk, Maria, et al., Sucrose-Sweetened Beverages Increase Fat Storage in the Liver,
Muscle, and Visceral Fat Depot: A 6-Month Randomized Intervention Study,
95 AM. J. CLINICAL NUTR. 283 (2012) ......................................................................... 13
Malik, Vasanti S., et al., Intake of Sugar-Sweetened Beverages and Weight Gain: A
Systematic Review, 84 AM. J. CLINICAL NUTR. 274 (2006) ......................................... 13
Malik, Vasanti S., et al., Sugar-Sweetened Beverages, Obesity, Type 2 Diabetes
Mellitus, and Cardiovascular Disease Risk, 121 CIRCULATION 1356, 1362 (2010) ... 14
May, Ashleigh L., et al., Prevalence of Cardiovascular Disease Risk Factors Among
US Adolescents, 1999−2008, 129 PEDIATRICS 1035 (2012) ......................................... 6
Mudd, Michael, How to Force Ethics on the Food Industry,
NY TIMES, Mar. 16, 2013 ............................................................................................ 23
Narayan, K.M. Venkat, et al., Lifetime Risk for Diabetes Mellitus in the United States,
290 JAMA 1884 (2003) ................................................................................................. 2
Nat’l Diabetes Statistics Clearinghouse, National Diabetes Statistics, NAT’L INST. OF
HEALTH (2011) ........................................................................................................... 1, 2
Ogden, Cynthia L., et al., Consumption of Sugar Drinks in the United States, 2005-2008,
NAT. CTR. HEALTH STAT., NCHS Data Brief No. 71 (Aug. 2011) ........................ 15, 16
Ogden, Cynthia L., et al., Prevalence of Obesity and Trends in Body Mass Index
Among US Children and Adolescents, 1999-2010,
307 J. AM. MED. ASS’N 483, 485 (2012) ...................................................................... 10
Ogden, Cynthia, and Carroll, Margaret, Prevalence of Obesity Among Children and
Adolescents: United States, Trends 1963-1965 Through 2007-2008,
NCHS HEALTH E-STAT (June 4, 2010) .......................................................................... 5
Ogden, Cynthia, et al., Prevalence of Obesity Among Adults: United States, 2011-2012,
NAT. CTR. HEALTH STATS, NCHS Data Brief No. 131 (Oct. 2013) .............................. 5
Ogden, Cynthia, et al., Prevalence of Obesity in the United States, 2009-2010,
NAT’L CTR. HEALTH STATS, NCHS Data Brief No. 82 (Jan. 2012) .......................... 5, 9
viii
Olshansky, S. Jay, et al., A Potential Decline in Life Expectancy in the United States
in the 21st Century, 352 NEW ENG. J. MED. 1138 (2005) .............................................. 6
Press Release, Health Commissioner Thomas Farley, The City of New York,
New Data Highlighting Strong Relationship Between Sugary Drink
Consumption And Obesity (Mar. 11, 2013) ................................................................. 15
Rehm, Colin D., et al., Demographic and Behavioral Factors Associated with Daily
Sugar-Sweetened Soda Consumption in New York City Adults,
85 J. URBAN HEALTH 375 (2008) ................................................................................. 16
Rolls, Barbara J., et al., Larger Portion Sizes Lead to a Sustained Increase in Energy
Intake Over 2 Days, 106 J. AM. DIET. ASS’N 543 (2006) ............................................ 22
Rolls, Barbara J., et al., Reductions in Portion Size and Energy Density of Foods are
Additive and Lead To Sustained Decreases In Energy Intake,
83 AM. J. CLINICAL NUTR. 11 (2008) ........................................................................... 26
Rolls, Barbara J., et al., The Effect of Large Portion Sizes on Energy Intake Is
Sustained for 11 Days, 15 OBESITY 1535 (2007) ........................................................ 22
Samuels, Sarah E., et al., Food and Beverage Industry Marketing Practices Aimed at
Children: Developing Strategies for Preventing Obesity and Diabetes,
THE CALIFORNIA ENDOWMENT (June 2003) ................................................................ 18
Schulze, Matthias B., et al., Sugar-Sweetened Beverages, Weight Gain, and Incidence
of Type 2 Diabetes in Young and Middle-Aged Women,
292 J. AM. MED. ASS’N 927 (2004) .............................................................................. 12
Stanhope, Kimber L., et al., Consumption of Fructose and High Fructose Corn Syrup
Increase Postprandial Triglycerides, LDL-Cholesterol, and Apolipoprotein-B in
Young Men and Women, 2011
96 J. CLINICAL ENDOCRINOLOGY & METABOLISM E1596 (2011) ................................ 12
Statements on Diabetes Issues,
CTRS. FOR DISEASE CONTROL AND PREVENTION (2010) ................................................ 2
Sugary Drink F.A.C.T.S.: Evaluating Sugary Drink Nutrition
and Marketing to Youth, YALE RUDD CTR. FOR FOOD POL’Y & OBESITY
(Oct. 2011) ............................................................................................................. 19, 22
Sugary Drinks and Obesity Fact Sheet, The Nutrition Source, HARV. SCH. OF PUB.
HEALTH ........................................................................................................................ 13
Taveras, Elsie M., et al., Racial/Ethnic Differences in Early-Life Risk Factors for
Childhood Obesity, 125 PEDIATRICS 686 (2010) ......................................................... 16
ix
Te Morenga, Lisa, et al., Dietary Sugars and Body Weight: Systematic Review and
Meta-Analyses of Randomised Controlled Trials and Cohort Studies,
346 BMJ e7492 (2013) ................................................................................................ 14
The Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity,
U.S. DEP’T OF HEALTH AND HUMAN SERVS. (2007) ...................................................... 6
Trogdon, Justin G., et al., State- and Payer-Specific Estimates of Annual Medical
Expenditures Attributable to Obesity, 20 OBESITY 214 (2012) ..................................... 8
U.S. Dep’t of Agric. & U.S. Dep’t of Health and Human Servs., Dietary Guidelines
for Americans, 2010, 7th Ed. (2010) ........................................................................... 11
Van Dam, Rob M., et al., The Relationship Between Overweight in Adolescence and
Premature Death in Women, 145 ANN. INTERN. MED. 91 (2006) ................................. 6
Van Wye, Gretchen, et al., Obesity and Diabetes in New York City, 2002 and 2004,
5 PREV. CHRONIC DISEASE 2 (2008) .............................................................................. 8
Vartanian, Lenny R., et al., Effects of Soft Drink Consumption on Nutrition and Health:
A Systematic Review and Meta-Analysis, 97 AM. J. PUB. HEALTH 667 (2007) ........... 14
Wang, Claire Y., et al., Estimating the Energy Gap Among US Children: A
Counterfactual Approach, 118 PEDIATRICS e1721 (2006) .......................................... 14
Wang, Claire Y., et al., Health and Economic Burden of the Projected Obesity
Trends in the USA and the UK, 378 LANCET 815 (2011) .............................................. 7
Wang, Y. Claire, and Vine, Seanna, Caloric Effect of a 16-ounce (473-mL)
Portion-Size Cap on Sugar-Sweetened Beverages Served in Restaurants,
98 AM. J. CLINICAL NUTR. 430 (2013) ......................................................................... 26
Wang, Youfa and Beydoun, May, The Obesity Epidemic in the United States –
Gender, Age, Socioeconomic, Racial/Ethnic, and Geographic Characteristics,
29 EPIDEMIOL. REV. 6 (2007) ................................................................................... 9, 10
Wood, David, U.S. Wounded In Iraq, Afghanistan, HUFF. POST, Nov. 7, 2012 ................ 1
Woodward-Lopez, Gail, et al., To What Extent Have Sweetened Beverages
Contributed to the Obesity Epidemic? 14 PUB. HEALTH NUTR. 499 (2010) ......... 11, 24
Yancy, Antronette K., et al., A Cross-Sectional Prevalence Study of Ethnically
Targeted and General Audience Outdoor Obesity-Related Advertising,
87 MILBANK Q. 155 (Mar. 2009) ................................................................................. 20
x
Young, Lisa R., and Nestle, Marion, The Contribution of Expanding Portion Sizes
to the US Obesity Epidemic, 92 AM. J. PUB. HEALTH 246 (2002) ............................... 22
BOOKS
Glickman, Dan, et al., eds., Inst. of Med., ACCELERATING PROGRESS IN OBESITY
PREVENTION: SOLVING THE WEIGHT OF THE NATION
(National Academies Press 2012) ................................................................................ 11
Moss, Michael, SALT SUGAR FAT: HOW THE FOOD GIANTS HOOKED US
(Random House 2013) ................................................................................................. 21
xi
STATEMENTS OF INTEREST OF AMICI CURIAE
Amici curiae are health organizations and hospitals dedicated to
serving the communities that have been most disproportionately impacted
by the obesity-related health crisis. Amici know first-hand the severe
implications of this crisis for public health generally, and for underserved
racial and ethnic communities in particular. Amici recognize the
importance of taking action to stem the tide of obesity and chronic disease,
as New York City’s Board of Health has done by adopting the rule limiting
sugary drink portion sizes. Because that rule is a reasonable and measured
attempt to ameliorate a dire crisis, amici submit this brief in support of
Respondents’ appeal.
The National Alliance for Hispanic Health (the Alliance) is the
nation’s foremost science-based source of information and trusted advocate
for the health of Hispanics in the United States. The Alliance’s mission is
to improve the health of Hispanics and work with others to secure health
for all. The Alliance conducts research, demonstration programs, and
provides health services through its member organizations, which include
community-based groups, national organizations, universities, government
agencies, foundations, and corporations. The Alliance represents
thousands of Hispanic health providers across the nation providing services
xii
to millions each year. The work of the Alliance has demonstrated the
critical role of policy in supporting healthy environments, including access
to healthy foods and opportunity for physical activity, which can transform
the well-being of communities. The connection between sugar-sweetened
beverages consumption and chronic diseases that disproportionately impact
the Hispanic community, such as diabetes, is well-established. The portion
cap regulation is a sensible measure that attempts to address the excessive
consumption of sugary beverages. The Alliance is dedicated to
community-based solutions and the principle that good corporate
citizenship means policies and corporate actions that benefit the well-being
of all consumers.
The Association of Black Cardiologists, Inc. (ABC) is a nonprofit
organization with an international membership of 2,500 health
professionals, members of the community, corporate members, and
institutional members, dedicated to eliminating the disparities related to
cardiovascular disease in all people of color.
ABC’s members are united
by the need to bring special attention to the adverse impact of
cardiovascular disease on African Americans. The correlation between
excessive consumption of sugar-sweetened beverages and heightened risk
xiii
of cardiovascular disease is well established, as is the disproportionate
epidemiological impact on the African American community.
The Harlem Health Promotion Center (HHPC) is one of 37
Prevention Research Centers funded by the Centers for Disease Control
and Prevention to address health disparities within vulnerable
communities. Sugar-sweetened beverages are a key factor contributing to
obesity, which in turn is associated with hypertension, diabetes and
cardiovascular disease. These health issues take a heavy toll on the health
status of all Americans and disproportionately affect people of color in
communities like Harlem. The HHPC works to raise awareness and
provide support for behavior change and advocacy efforts.
New York State American Academy of Pediatrics (NYS AAP),
District II. The American Academy of Pediatrics is a national organization
composed of over 55,000 pediatricians. The New York State District of
the American Academy of Pediatrics is an endorsed District Affiliate of the
national organization. NYS AAP, District II, representing more than 5,000
pediatricians in offices, clinics and academic medicine across the state
works to attain optimal physical, mental and social and health and well-
being for all children in New York.
xiv
United Puerto Rican Organization of Sunset Park (UPROSE) is
dedicated to the development of Southwest Brooklyn and the
empowerment of its residents primarily through broad and converging
environmental, sustainable development, and youth justice campaigns.
Founded in 1966, UPROSE is Brooklyn’s oldest Latino community-based
organization. In 1996 UPROSE’s mission refocused on organizing,
advocacy and developing intergenerational, indigenous leadership through
activism around a host of environmental justice issues, including access to
healthy food options. UPROSE aims to ensure and heighten community
awareness and involvement, develop participatory community planning
practices, and promote sustainable development with justice and
governmental accountability. Sales practices that promote unhealthy food
and beverage consumption often target low-income communities with a
history of health disparities. Restriction of these practices improves health
by reducing unhealthy eating and increases the opportunities and pressures
for greater access to healthy food.
Harlem Children’s Zone, Inc. is a nonprofit organization serving
over 20,000 predominately African-American children and adults in
Central Harlem. Founded in 1970, our mission is to improve the outcomes
of poor children including academic, social and health outcomes. Almost
xv
one half (46%) of the children in our local public elementary schools are
overweight or obese which is out of proportion to national averages of
34%. Harlem Children’s Zone’s Healthy Harlem initiative is in place to
help families become healthier. A portion size cap on sugar-sweetened
beverages would be of tremendous help in this effort and Harlem
Children’s Zone supports it 100%.
The Children’s Aid Society is an independent, not-for-profit
organization established to serve the children of New York City. The
mission of Children’s Aid is to help children in poverty to succeed and
thrive. Founded in 1853, it is one of the nation’s largest and most
innovative non-sectarian agencies. Today Children’s Aid serves New
York’s neediest children and their families at more than 45 locations in the
five boroughs and Westchester County. All aspects of a child’s
development are addressed as he or she grows, from health care to
academics to sports and the arts. And because stable children live in stable
families, a host of services are available to parents, including housing
assistance, domestic violence counseling and health care access. Services
are provided in community schools, neighborhood centers, health clinics
and camps. Good nutrition is critical to children’s future success. It is
xvi
well established that the excessive consumption of sugar-sweetened
beverages leads to heightened risk of chronic disease.
The National Congress of Black Women, Inc. (NCBW) is a
501(c)(3) non-profit organization dedicated to the educational, political,
economic, and cultural development of African-American Women and
their families. NCBW also serves as a nonpartisan voice on issues
pertaining to the appointment of African-American Women at all levels of
government, and to increase African-American Women’s participation in
the educational, political, economic and social arenas. NCBW understands
the urgency of working to alleviate the high chronic disease rates in the
African-American community. African-American women and children
have very high rates of obesity, diabetes and high blood pressure. These
diseases could be prevented by stronger education and policies such as
ones that reduce sugary drink consumption. NCBW believes it is our duty
to do what we can to prevent the health problems our community is facing.
Everyone will not heed the advice, but we must provide it to those
community members willing to listen and we must step forward as citizens
to change the way businesses operate when they are expanding their profits
at the expense of our health.
xvii
Montefiore Medical Center, the academic medical center and
University Hospital for Albert Einstein College of Medicine, is centered in
the heart of one of the nation’s most economically and health-challenged
communities and is nationally renowned for clinical excellence—breaking
new ground in research, training the next generation of healthcare leaders,
and delivering science-driven, patient-centered care. Recognized among
the top hospitals nationally and regionally by U.S. News & World Report,
Montefiore provides primary and specialty care through a network of more
than 130 locations across the region, including 90,000 admissions, 500,000
home care visits and 2.6 million ambulatory visits a year. The correlation
between excessive consumption of sugar-sweetened beverages and
heightened risk of chronic disease is well established.
The Mount Sinai Health System is an integrated health system
committed to providing distinguished care, conducting transformative
research, and advancing biomedical education. Structured around seven
member hospital campuses and a single medical school, the Health System
has an extensive ambulatory network and a range of inpatient and
outpatient services—from community-based facilities to tertiary and
quaternary care. The System includes approximately 6,600 primary and
specialty care physicians, 12-minority-owned free-standing ambulatory
xviii
surgery centers, over 45 ambulatory practices throughout the five boroughs
of New York City, Westchester, and Long Island, as well as 31 affiliated
community health centers.
1
PRELIMINARY STATEMENT
The United States, and New York City, face a crisis of obesity, type 2
diabetes, and related chronic disease. The crisis affects millions of New
Yorkers, including a disproportionate number who are members of the
underserved communities with which amici are particularly concerned.
The extent and urgency of the crisis are difficult to overstate. To pick
a single statistic: according to the U.S. Army Surgeon General’s Office, the
total number of United States military personnel, from all service branches,
who had to undergo amputations as a result of the wars in Iraq and
Afghanistan was 1,572. David Wood, U.S. Wounded In Iraq, Afghanistan,
HUFF. POST, Nov. 7, 2012 (citing documents obtained from the Department
of Defense).1 According to the U.S. Department of Health and Human
Services, the number of Americans with diabetes who had to undergo
amputations in just the year 2006 was 65,700. See Nat’l Diabetes Statistics
Clearinghouse, National Diabetes Statistics, NAT’L INST. OF HEALTH
(2011).2
The projected impact on future generations in the United States is
devastating: The Centers for Disease Control and Prevention estimate that
1 Available at http://www.huffingtonpost.com/2012/11/07/iraq-afghanistan-
amputees_n_2089911.html
2 Available at http://diabetes.niddk.nih.gov/dm/pubs/statistics/#Amputations
2
an American child born in 2000 has a 1 in 3 chance of developing type 2
diabetes. If that baby is a girl, the chance that she will develop the disease is
40 percent. If that baby girl is Hispanic or African-American, the odds that
she will develop diabetes during her lifetime are 1 in 2. K.M. Venkat
Narayan et al., Lifetime Risk for Diabetes Mellitus in the United States, 290
JAMA 1884 (2003),3 cited in Statements on Diabetes Issues, CTRS. FOR
DISEASE CONTROL AND PREVENTION (2010).4 In other words, one half of the
Hispanic and African-American girls in this country face a future in which
amputation, with a lifetime risk up to 25 percent, see Manish P. Khanolkar et
al., The Diabetic Foot, 101 QJM 685 (2008),5 and vision loss or blindness,
see Nat’l Diabetes Statistics Clearinghouse, National Diabetes Statistics,6
with a lifetime risk of 30 percent, are likely health outcomes.
In the context of this health emergency, it is difficult to see the
portion-size rule (Section 81.53 or “the Rule”) adopted by the New York
City Board of Health as excessive, or the inconvenience of having to order a
second 16-ounce soda as requiring too great a sacrifice. To the contrary,
were it not for the wide array of other measures adopted by the City to
counter the crisis, the Rule could if anything be deemed far too modest. But
3 Available at http://helios.hampshire.edu/~cjgNS/sputtbug/416K/Endo/DiabetesRisk.pdf
4 Available at http://www.cdc.gov/diabetes/news/docs/lifetime.htm#results
5 Available at http://qjmed.oxfordjournals.org/content/101/9/685.full
6 Available at http://diabetes.niddk.nih.gov/dm/pubs/statistics/
3
the Rule is part of a much broader effort; it is directed at overconsumption of
sugary drinks, one of the prime drivers of the obesity and diabetes crises;
and it is tailored to effect a small but significant change in behavior. Given
the severity of the obesity and diabetes crises, the connection between
consumption of sugary drinks and diet-related disease, and the link between
portion size and consumption, the Board acted with more than ample
justification in adopting the Rule.
As organizations deeply involved with the communities most affected
by the crisis of diabetes, obesity, and associated chronic disease, amici
strongly support the Rule. Amici recognize that there are legitimate
differences of opinion about the Rule’s ultimate impact, though there can be
none about its justification. Those differences of opinion were aired, as they
should have been, during the rulemaking process when the Board sought and
received tens of thousands of comments and petition signatures regarding
the Rule, on both sides of the issue. N.Y. Statewide Coalition of Hisp.
Chambers of Comm. v. N.Y.C. Dep’t of Health and Mental Hygiene, 970
N.Y.S.2d 200, 205 (2013).
The Rule has now been adopted. It rests on a solid evidence base.
The problem it addresses is perhaps the gravest and most pervasive public
4
health issue of our time. The only way to determine if the Rule will work in
practice is to let it go into effect and to evaluate the results.
As associations of medical professionals, science-based health
organizations, and hospitals serving the New Yorkers who have been most
directly and devastatingly affected by the obesity and diabetes crises, amici
urge this Court to let that evaluation happen.
ARGUMENT
I. OBESITY AND OTHER FORMS OF DIET-RELATED
DISEASE ARE A CRITICAL PROBLEM FACING THE
NATION AND THE CITY, ESPECIALLY IN UNDERSERVED
ETHNIC COMMUNITIES
A. The Country Faces a Crisis of Obesity, Type 2 Diabetes,
and Related Chronic Disease.
The health crisis that the portion-size rule addresses is vast in scope.
More than a third of adults in the United States are now obese; another third
are overweight. Katherine M. Flegal, Prevalence of Obesity and Trends in
the Distribution of Body Mass Index Among US Adults, 1999-2010, 307 J.
AM. MED. ASS’N 491 (2012).7 In 2011-2012, over 78 million U.S. adults –
some 41 million women and 37 million men – were obese. Cynthia Ogden
7 Available at http://www.foodpolitics.com/wp-content/uploads/ObesityRates
_JAMA_12.pdf
5
et al., Prevalence of Obesity Among Adults: United States, 2011-2012, NAT.
CTR. HEALTH STATS, NCHS Data Brief No. 131 (Oct. 2013) at 1-8.8
Still, the most devastating effect may be on children. In the last thirty
years, the obesity rate among young children, like that among adolescents,
has more than tripled. Cynthia Ogden & Margaret Carroll, Prevalence of
Obesity Among Children and Adolescents: United States, Trends 1963-1965
Through 2007-2008, NCHS HEALTH E-STAT, June 4, 2010 at 5.9 Almost a
sixth of American youth – some 12.5 million American children and
adolescents – are now obese. See Cynthia Ogden et al., Prevalence of
Obesity in the United States, 2009-2010, NAT’L CTR. HEALTH STATS, NCHS
Data Brief No. 82 (Jan. 2012).10
Obese children are more likely to have type 2 diabetes, asthma, joint
problems, and even early signs of heart disease. Basics About Childhood
Obesity, CTRS. FOR DISEASE CONTROL AND PREVENTION (Apr. 27, 2012).11
They are also more likely to be obese adults and to have shortened life
expectancy. Id.; Rob M. Van Dam et al., The Relationship Between
Overweight in Adolescence and Premature Death in Women, 145 ANN.
8 Available at http://www.cdc.gov/nchs/data/databriefs/db131.pdf
9 Available at
http://www.cdc.gov/nchs/data/hestat/obesity_adult_07_08/obesity_adult_07_08.pdf
10 Available at http://www.cdc.gov/nchs/data/databriefs/db82.pdf
11 Available at http://www.cdc.gov/obesity/childhood/basics.html
6
INTERN. MED. 91 (2006).12 Overweight children are at increased risk for
serious health problems in adulthood. See U.S. DEP’T OF HEALTH AND
HUMAN SERVS., The Surgeon General’s Call to Action to Prevent and
Decrease Overweight and Obesity (2007)13 at 8; see also COMM. ON
PREVENTION OF OBESITY IN CHILDREN AND YOUTH, Preventing Childhood
Obesity: Health in the Balance (Jeffrey P. Koplan et al., eds., 2005).14 The
CDC has found that 50 percent of overweight adolescents and 60 percent of
obese adolescents have at least one cardiovascular disease risk factor.
Ashleigh L. May et al., Prevalence of Cardiovascular Disease Risk Factors
Among US Adolescents, 1999−2008, 129 PEDIATRICS 1035, 1039 (2012).15
As one well-known assessment starkly sums up the data, today’s young
people may be the first generation in the history of the United States to live
sicker and die younger than their parents’ generation. S. Jay Olshansky et
al., A Potential Decline in Life Expectancy in the United States in the 21st
Century, 352 NEW ENG. J. MED. 1138, 1141 (2005).16
Preventing the current generation of young people from developing
these health conditions would not only improve Americans’ quality of life
12 Available in Addendum of Amici Curiae filed with this brief.
13 Available at http://www.ncbi.nlm.nih.gov/books/NBK44206/
14 Available at http://books.nap.edu/openbook.php?record_id=11015&page=332
15 Available at http://pediatrics.aappublications.org/content/early/2012/05/15/peds.2011-
1082.full.pdf+html
16 Available at http://www.nejm.org/doi/pdf/10.1056/NEJMsr043743
7
but also save federal, state, and local governments billions of dollars in
health care costs and lost productivity. The costs of obesity, which are rising
rapidly, are already estimated to be as high as $147 billion per year. Eric A.
Finkelstein et al, Annual Medical Spending Attributable to Obesity: Payer-
and Service-Specific Estimates, 28 HEALTH AFF. w822 (2009).17
Using a simulation model to project the probable health and economic
consequences over the next two decades from continuing trends in obesity in
the United States, researchers have projected 65 million more obese adults
by 2030, with a consequent additional 6-8.5 million cases of type 2 diabetes,
5.7-7.3 million cases of heart disease and stroke, and 492,000-669,000
additional cases of cancer. Y. Claire Wang et al., Health and Economic
Burden of the Projected Obesity Trends in the USA and the UK, 378 LANCET
815 (2011).18 By 2030, just the increase in medical costs associated with
treatment of these preventable diseases projects to be $48-$66 billion a year.
Id.
B. The Crisis Profoundly Affects New York City.
In the early years of the 21st century, the crisis of obesity and related
chronic disease hit New York City particularly hard, with prevalence rates
17 Available at http://content.healthaffairs.org/content/28/5/w822.full.pdf
18 Available at http://www.nccor.org/downloads/Obesity%202.pdf
8
for obesity and diabetes rising significantly faster among the City’s
population than in the rest of the nation. See Gretchen Van Wye et al.,
Obesity and Diabetes in New York City, 2002 and 2004, 5 PREV. CHRONIC
DISEASE 2 (2008).19
The costs of the crisis to the City have been staggering. The
Department of Health and Mental Hygiene, working from statewide data,
has estimated obesity-related healthcare expenditures in the City to exceed
$4.7 billion annually – an additional average yearly burden of $1,500 for
every household in the City. See Respondents’ Verified Answer, Exh. H,
Record on Appeal at 1430; Justin G. Trogdon et al., State- and Payer-
Specific Estimates of Annual Medical Expenditures Attributable to Obesity,
20 OBESITY 214 (2012).20
On the other hand, there is some indication that the diverse and
numerous measures New York has implemented to confront the crisis may
have begun to have an effect: the prevalence of obesity among elementary
public school children in the City fell slightly between 2006-07 and 2010-
11. Magdalena Berger et al., Obesity in K–8 Students - New York City,
19 Available at http://www.cdc.gov/pcd/issues/2008/apr/pdf/07_0053.pdf
20 Available at http://onlinelibrary.wiley.com/doi/10.1038/oby.2011.169/full
9
2006–07 to 2010–11 School Years, MORB. AND MORT. WEEKLY REP, Dec.
16, 2011.21 There still remains, however, an enormous amount to be done.
C. The Scourge Of Diet-Related Disease Has
Disproportionately Affected Underserved Communities.
Obesity rates in underserved communities, and particularly among
African-American and Hispanic populations, remain significantly higher
than rates among the remainder of the population. See Youfa Wang & May
Beydoun, The Obesity Epidemic in the United States – Gender, Age,
Socioeconomic, Racial/Ethnic, and Geographic Characteristics, 29
EPIDEMIOL. REV. 6, 11 (2007).22 The rates of overweight and obesity for
Hispanic and African-American children and adolescents are more than 1.5
times those for their Caucasian counterparts. Id. at 16. In 2007-08, for
example, “the prevalence of obesity was significantly higher among
Mexican-American adolescent boys (26.8%) than among non-Hispanic
white adolescent boys (16.7%).” Cynthia L. Ogden et al., Prevalence of
Obesity in the United States, 2009-2010.23 In 2009-10, “21.2% of Hispanic
children and adolescents and 24.3% of non-Hispanic black children and
adolescents were obese, compared with 14.0% of non-Hispanic white
21 Available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6049a1.htm?s_
cid=mm6049a1_w
22 Available at http://epirev.oxfordjournals.org/content/29/1/6.full.pdf+html
23 Available at http://www.cdc.gov/nchs/data/databriefs/db82.pdf
10
children and adolescents.” Cynthia L. Ogden et al., Prevalence of Obesity
and Trends in Body Mass Index Among US Children and Adolescents, 1999-
2010, 307 J. AM. MED. ASS’N 483, 485 (2012) (noting “significant
differences in obesity prevalence by race/ethnicity”).24 The trends carry
forward into adulthood. See Wang & Beydoun, The Obesity Epidemic in the
United States, at 6 (“Minority and low-socioeconomic-status groups are
disproportionately affected at all ages.”).25 And the disparities are
particularly prevalent in New York City. See Epiquery: NYC Interactive
Health Data System - Community Health Survey 2011, N.Y.C. DEP’T OF
HEALTH AND MENTAL HYGIENE (2011) (showing obesity rates of 18.7% for
“White Non-Hispanic,” 29.5% for “Hispanic,” and 33.3% for “Black Non-
Hispanic”).26
II. CONSUMPTION OF SUGARY DRINKS CONTRIBUTES
SIGNIFICANTLY TO OBESITY, TYPE 2 DIABETES, AND
OTHER FORMS OF CHRONIC DISEASE.
There is robust evidence of a link between consumption of sugary
drinks and chronic disease, and increasing confirmation that the relationship
is causal. As the author of one meta-study observed,
24 Available at http://jama.jamanetwork.com/article.aspx?articleid=1104932
25 Available at http://epirev.oxfordjournals.org/content/29/1/6.full.pdf+html
26 Available at http://nyc.gov/health/epiquery (Community Health Survey
2011/Overweight and Obesity/Race/Ethnicity).
11
All lines of evidence consistently support the conclusion that the
consumption of sweetened beverages has contributed to the obesity
epidemic. It is estimated that sweetened beverages account for at least
one-fifth of the weight gained between 1977 and 2007 in the US
population. Actions that are successful in reducing sweetened
beverage consumption are likely to have a measurable impact on
obesity.
Gail Woodward-Lopez et al., To What Extent Have Sweetened Beverages
Contributed to the Obesity Epidemic? 14 PUB. HEALTH NUTR. 499 (2010)
(concluding that the association between sugary beverage consumption and
weight gain is stronger than for any other food or beverage).27 The Institute
of Medicine has identified sugary drinks as “the single largest contributor of
calories and added sugars to the American diet.” INST. OF MED.,
ACCELERATING PROGRESS IN OBESITY PREVENTION: SOLVING THE WEIGHT
OF THE NATION 167 (Dan Glickman et al., eds.) (2012). The Dietary
Guidelines for Americans (DGAs), which serve as the basis for all federal
food and nutrition education programs, note that 36 percent of Americans’
added sugar intake comes from sugary drinks and advise consumers to
reduce consumption of those beverages. U.S. DEP’T OF AGRIC. & U.S. DEP’T
27 Available at http://banpac.org/pdfs/sfs/2011/sodas_cont_obesity_2_01_11.pdf
12
OF HEALTH AND HUMAN SERVS., Dietary Guidelines for Americans, 2010,
7th Ed. (2010) at 28-29 and Fig. 3-6.28
Studies have increasingly established the connection between sugar-
sweetened beverages and increased rates of chronic disease. See, e.g.,
Matthias B. Schulze et al., Sugar-Sweetened Beverages, Weight Gain, and
Incidence of Type 2 Diabetes in Young and Middle-Aged Women, 292 J. AM.
MED. ASS’N 927 (2004);29 Teresa T. Fung et al., Sweetened Beverage
Consumption and Risk of Coronary Heart Disease in Women, 89 AM. J.
CLINICAL NUTR. 1037 (2009);30 L. de Koning et al., Sweetened Beverage
Consumption, Incident Coronary Heart Disease, and Biomarkers of Risk in
Men, 125 CIRCULATION 1735 (2012).31 Indeed, some of the impacts are
immediate and dramatic: Drinking three sodas per day for just two weeks
causes a 20 percent rise in LDL (bad) cholesterol and triglycerides. See
Kimber L. Stanhope et al., Consumption of Fructose and High Fructose
Corn Syrup Increase Postprandial Triglycerides, LDL-Cholesterol, and
Apolipoprotein-B in Young Men and Women, 2011 96 J. CLINICAL
28 Available at http://www.health.gov/dietaryguidelines/dga2010/
DietaryGuidelines2010.pdf
29 Available at http://www.commercialalert.org/schultzesoda.pdf
30 Available at http://ajcn.nutrition.org/content/89/4/1037.full.pdf+html
31 Available at http://circ.ahajournals.org/content/125/14/1735.long
13
ENDOCRINOLOGY & METABOLISM E1596 (2011).32 Continuing to drink
those same three sugary beverages a day causes a 140 percent increase in fat
deposits in the liver – an indicator associated with fatty liver disease,
obesity, and diabetes. Maria Maersk et al., Sucrose-Sweetened Beverages
Increase Fat Storage in the Liver, Muscle, and Visceral Fat Depot: A 6-
Month Randomized Intervention Study, 95 AM. J. CLINICAL NUTR. 283
(2012).33
The long-term impact can be severe. Recent data show that
consumption of sugar-sweetened beverages may influence the development
of obesity among children, adolescents, and adults. See Sonia Caprio,
Calories from Soft Drinks – Do They Matter? 367 N. ENGL. J. MED. 1462
(2012).34 Meta-analyses confirm the link. See Vasanti S. Malik et al., Intake
of Sugar-Sweetened Beverages and Weight Gain: A Systematic Review, 84
AM. J. CLINICAL NUTR. 274 (2006) (“The weight of epidemiologic and
experimental evidence indicates that a greater consumption of sugary drinks
is associated with weight gain and obesity.”).35 See generally Sugary Drinks
and Obesity Fact Sheet, The Nutrition Source, HARV. SCH. OF PUB. HEALTH
(collecting studies, and concluding that “sugary drinks are a major
32 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3200248/
33 Available at http://ajcn.nutrition.org/content/95/2/283.full
34 Available at http://myeloma.org/pdfs/NEJM-Calories-From-Soft-Drinks.pdf
35 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3210834/pdf
14
contributor to the obesity epidemic”).36 Indeed, drinking just one soda per
day increases a child’s odds of developing obesity by 55 percent, and a
woman’s risk of developing type 2 diabetes by 80 percent. Lisa Te Morenga
et al., Dietary Sugars and Body Weight: Systematic Review and Meta-
Analyses of Randomised Controlled Trials and Cohort Studies, 346 BMJ
e7492 (2013).37
Research has provided explanations for the link between sugar-
sweetened beverages and obesity. Consumers of sugary drinks “do not
compensate for the added energy they consume in soft drinks by reducing
their intake of other foods,” which results in “increased total energy
intakes.” Lenny R. Vartanian et al., Effects of Soft Drink Consumption on
Nutrition and Health: A Systematic Review and Meta-Analysis, 97 AM. J.
PUB. HEALTH 667, 669 (2007);38 Vasanti S. Malik et al., Sugar-Sweetened
Beverages, Obesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease
Risk, 121 CIRCULATION 1356, 1362 (2010) (“[Sugar-sweetened beverages]
are the greatest contributor to added sugar-intake in the United States and
are thought to promote weight gain in part because of incomplete
36 Available at http://www.hsph.harvard.edu/nutritionsource/sugary-drinks-fact-sheet/
37 Available at http://www.bmj.com/content/346/bmj.e7492
38 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1829363/
15
compensation for liquid calories at subsequent meals”);39 Y. Claire Wang et
al., Estimating the Energy Gap Among US Children: A Counterfactual
Approach, 118 PEDIATRICS e1721 (2006) (noting sugar-sweetened beverages
are associated with overweight in both observational and experimental
studies, and that studies suggest that calories from these beverages are often
not offset by reduction of intake elsewhere).40
In New York City in particular, the connection between sugary drink
consumption and obesity and chronic disease is stark and direct. See Press
Release, Health Commissioner Thomas Farley, New Data Highlighting
Strong Relationship Between Sugary Drink Consumption And Obesity (Mar.
11, 2013) (“This analysis suggests that sugary drink consumption is
contributing to obesity not just in national research studies, but also in our
local neighborhoods.”).41
III. CONSUMPTION OF SUGARY DRINKS, DRIVEN BY
TARGETED MARKETING, IS SIGNIFICANTLY HIGHER
AMONG YOUTH AND ETHNIC MINORITY POPULATIONS.
Members of ethnic minority communities consume disproportionately
large amounts of sugar-sweetened beverages. See Cynthia L. Ogden et al.,
39 Available at http://circ.ahajournals.org/content/121/11/1356.full.pdf
40 Available at http://pediatrics.aappublications.org/content/118/6/e1721.full.pdf
41 Available at http://www1.nyc.gov/office-of-the-mayor/news/088-13/mayor-
bloomberg-deputy-mayor-gibbs-health-commissioner-farley-release-new-data-
highlighting
16
Consumption of Sugar Drinks in the United States, 2005-2008, NAT. CTR.
HEALTH STAT., NCHS Data Brief No. 71 (Aug. 2011) at 3.42 This locks
ethnic minorities and sugary drinks into a tragic cycle: African-American
and Hispanic communities consume more sugary drinks; people who
consume more sugary drinks develop more chronic disease; therefore,
African-American and Hispanic groups suffer from disproportionately high
rates of chronic disease. There is no surprise to the conclusion of this
syllogism, perhaps; but it is a deeply troubling result.
The rate of consumption of sugary drinks is significantly higher
among Hispanics and African-Americans – indeed, one and a half times as
high as among non-Hispanic whites. Ogden, Consumption of Sugar Drinks
in the United States, at 3; Elsie M. Taveras et al., Racial/Ethnic Differences
in Early-Life Risk Factors for Childhood Obesity, 125 PEDIATRICS 686
(2010) (finding black and Hispanic children after age 2 had significantly
higher consumption of sugar-sweetened beverages).43
In New York City, the disparities are at least as sharp. See Colin D.
Rehm et al., Demographic and Behavioral Factors Associated with Daily
Sugar-Sweetened Soda Consumption in New York City Adults, 85 J. URBAN
42 Available at http://www.cdc.gov/nchs/data/databriefs/db71.pdf
43 Available at http://pediatrics.aappublications.org/content/125/4/686.full.pdf
17
HEALTH 375 (2008) (finding, using whites as the reference group, that the
odds of consuming soda were 3.1 times higher for U.S.-born blacks, 2.4
times higher for Puerto Ricans, and 2.9 times higher for Mexicans/Mexican-
Americans).44
In the New York City neighborhoods with the highest levels of
obesity, residents are four times as likely to drink four or more sugary drinks
a day as residents of neighborhoods with the lowest obesity rates. BRONX,
BROOKLYN AND HARLEM DISTRICT PUBLIC HEALTH OFFICES, Sugary Drinks:
How Much Do We Consume? A Neighborhood Report (2011).45
The consumption of sugary drinks by African-American and Hispanic
youth, in particular, has been fostered by racially and ethnically targeted
marketing by beverage companies. See FED. TRADE COMM’N, Marketing
Food to Children and Adolescents: A Review of Industry Expenditures, and
Self-Regulation (2008) at 57 (finding $28.6 million spent annually by
beverage companies on marketing campaigns targeting African-American
and Hispanic youth).46 Beverage industry executives are quite forthright
about their efforts to market their products to Hispanic and African-
44 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2329746/
45 Available at http://www.nyc.gov/html/doh/downloads/pdf/dpho/dpho-sugary-drinks-
report.pdf
46 Available at http://www.ftc.gov/reports/marketing-food-children-adolescents-review-
industry-expenditures-activities-self-regulation
18
American youth. See CHANGELAB SOLUTIONS, Breaking Down the Chain: A
Guide to the Soft Drink Industry (2012) at 41 (quoting Pepsi-Cola VP
explaining that “[i]t’s important for us to reach young [Hispanics] with
messaging that is relevant and authentic, because obviously they are the
future for us”);47 id at 42 (quoting Coca-Cola VP noting the importance of
marketing to “African-American teens, in particular,” who “have proven to
be trendsetters”). Marketing reviews bear out the industry’s pronounced
focus on Hispanic and African-American audiences. See id. at 43 (review of
marketing across all media that showed “heavy marketing of non-diet
[carbonated soft drinks] and other sugary drinks in media directed toward
Hispanics and African-Americans, compared with market-wide trends”).
Although food and beverage marketing in general has increased over the
past two decades, Sarah E. Samuels et al., Food and Beverage Industry
Marketing Practices Aimed at Children: Developing Strategies for
Preventing Obesity and Diabetes, THE CALIFORNIA ENDOWMENT (June
2003),48 vulnerable ethnic communities have been a particular focus of that
marketing. Sonya A. Grier, African American & Hispanic Youth
Vulnerability to Target Marketing: Implications for Understanding the
47 Available at http://changelabsolutions.org/sites/default/files/ChangeLab-
Beverage_Industry_Report-FINAL_(CLS-20120530)_201109.pdf
48 Available at http://epsl.asu.edu/ceru/Articles/CERU-0311-208-OWI.pdf
19
Effects of Digital Marketing, BERKELEY MEDIA STUD. GROUP (2009)
(finding that in 2004 spending on ethnic-target marketing geared toward
Hispanics and African Americans totaled $3.9 billion and $1.7 billion,
respectively);49 Sugary Drink F.A.C.T.S.: Evaluating Sugary Drink Nutrition
and Marketing to Youth, YALE RUDD CTR. FOR FOOD POL’Y & OBESITY (Oct.
2011) (noting disproportionate marketing of sugary drinks to black youth).50
Advertisements for sugary drinks are disproportionately present in
magazines and television shows that target African Americans and
Hispanics. Sonya A. Grier & Shiriki Kumanyika, The Context for Choice:
Health Implications of Targeted Food and Beverage Marketing to African
Americans, 98 AM. J. PUB. HEALTH 1616 (2008);51 Sugary Drink F.A.C.T.S.,
at 17 (noting sugary drink advertising appears more often in prime-time TV
programming geared toward black audiences).52 In addition, lower-income
black and Latino neighborhoods contain more outdoor advertisements for
sugary drinks than do white and higher-income neighborhoods. Id.
49 Available at http://changelabsolutions.org/sites/phlpnet.org/files/Targeted_marketing
_to_Hisp_and_AA_youth.pdf (collecting studies, and noting that “marketing that African
American and Hispanic Youth encounter features more food advertising, tends to
promote less healthful foods and is less likely to support positive nutrition”).
50 Available at http://www.sugarydrinkfacts.org/resources/sugarydrinkfacts_report.pdf
51 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2509618/
52 Available at http://www.sugarydrinkfacts.org/resources/sugarydrinkfacts_report.pdf
20
Marketing practices that disproportionately expose certain minority
groups to unhealthy products influence individual preferences “by creating
familiarity with certain products, by depicting social norms supportive of
their consumption or utilization, by addressing a void in positive and
culturally grounded images of people of color, and by reinforcing cultural
beliefs of inevitability regarding the development or maintenance of
obesity.” Shiriki K. Kumanyika & Sonya Grier, Targeting Interventions for
Ethnic Minority and Low-Income Populations, 16 FUTURE CHILD 187
(2006).53 These practices have all been deployed, backed by billions of
dollars in marketing budgets, in ethnic communities in New York City and
around the nation. It goes almost without saying that this focus has had a
significant impact on the beverage choices of African-American and
Hispanic youth: there is no question that advertising and other forms of
marketing play a prominent role in influencing individuals’ food and
beverage preferences and behaviors. Antronette K. Yancy et al., A Cross-
Sectional Prevalence Study of Ethnically Targeted and General Audience
Outdoor Obesity-Related Advertising, 87 MILBANK Q. 155 (Mar. 2009).54
53 Available at http://futureofchildren.org/futureofchildren/publications
/docs/16_01_09.pdf
54 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2879171/
21
In other words, the communities already most debilitated by the
scourge of obesity and diabetes are precisely the communities whose
members the beverage industry is currently trying to encourage to consume
more sugary drinks, in ever-larger sizes. See Lawrence Gostin, What
Accounts for the Reduction in Obesity rates for Pre-School Children?,
JAMA FORUM (Mar. 19, 2014) (“It will be evident to any thoughtful
observer that a major reason for expanding waistlines, especially among
children, is larger portion sizes—with the biggest culprit being super-sized
sugary drinks. Although a 12-ounce soda was considered ‘king-size’ in
1950, it is now marketed as a child portion”);55 Michael Moss, SALT SUGAR
FAT: HOW THE FOOD GIANTS HOOKED US 110 (2013) (quoting former Coca-
Cola executive recalling “the marketing division’s efforts boiled down to
one question: ‘How can we drive more ounces into more bodies more
often?’”).
IV. THE GROWTH IN SUGARY DRINK PORTION SIZES HAS
MATCHED THE INCREASE IN RATES OF OBESITY AND
TYPE 2 DIABETES.
Larger portion sizes have contributed to the spike in overweight and
obesity over the past several decades. Although a variety of factors account
55 Available at http://newsatjama.jama.com/2014/03/19/jama-forum-what-accounts-for-
the-reduction-in-obesity-rates-for-preschool-children/
22
for weight gain, the primary cause is an excess of energy intake over energy
expenditure. Lisa R. Young & Marion Nestle, The Contribution of
Expanding Portion Sizes to the US Obesity Epidemic, 92 AM. J. PUB.
HEALTH 246 (2002).56 Because physical activity has not changed
significantly in the past decade, increasing body weights can be attributed to
increased energy intake from, among other things, growing portion sizes
throughout the retail environment. Id. The average serving size of sugary
drinks has increased from 6.5 fluid ounces in the 1950s, to 13 ounces in
1996, to 20 ounces today. Sugary Drink F.A.C.T.S.57; NAT’L INST. OF
HEALTH, Serving Size Portions (2014).58
Increased default portion size leads to increased consumption.
Barbara J. Rolls et al., Larger Portion Sizes Lead to a Sustained Increase in
Energy Intake Over 2 Days, 106 J. AM. DIET. ASS’N 543 (2006); Barbara J.
Rolls et al., The Effect of Large Portion Sizes on Energy Intake Is Sustained
for 11 Days, 15 OBESITY 1535 (2007).59 This connection between the
default portion size and consumption is true not only for adults but even for
young children. Jennifer O. Fisher et al., Effect of Portion Size and Energy
56 Available at http://steinhardt.nyu.edu/nutrition.olde/PDFS/young-nestle.pdf
57 Available at http://www.sugarydrinkfacts.org/resources/sugarydrinkfacts_report.pdf
58 Available at https://www.nhlbi.nih.gov/health/public/heart/obesity/wecan/eat-
right/distortion.htm
59 Available at http://onlinelibrary.wiley.com/doi/10.1038/oby.2007.182/full
23
Density on Young Children’s Intake at a Meal, 88 AM. J. CLINICAL NUTR.
174 (July 2007);60 Jennifer O. Fisher et al., Children’s Bite Size and Intake
of an Entrée are Greater With Large Portions Than With Age-Appropriate
or Self-Selected Portions, 77 AM. J. CLINICAL NUTR. 1164 (2003).61
The connection holds, too, for consumption of sugar-sweetened
beverages. Julie E. Flood, The Effect of Increased Beverage Portion Size on
Energy Intake at a Meal, 106 J. AM. DIET. ASS’N 1984 (2006).62 The
beverage industry is very well aware of this fact. Michael Mudd, How to
Force Ethics on the Food Industry, NY TIMES, Mar. 16, 2013 (former food-
company executive noting industry “aggressively promoted larger portion
sizes, one of the few ways left to increase overall consumption in an
otherwise slow-growth market”);63 see also Let's Get Real: The Portion War
Between Big Soda and NYC Is All About Profit, Kelly Brownell, THE
ATLANTIC MONTHLY (June 15, 2012) (“Profit margins on these beverages
are enormous – 90 percent, as compared to, for example, 10 percent for
produce. And profits increase as people buy bigger portions”);64 James
60 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2531150/
61 Available at http://ajcn.nutrition.org/content/77/5/1164.full
62 Available in Addendum of Amici Curiae filed with this brief.
63 Available at http://www.nytimes.com/2013/03/17/opinion/sunday/how-to-force-ethics-
on-the-food-industry.html?pagewanted=1&_r=0&ref=opinion.
64 Available at http://www.theatlantic.com/health/archive/2012/06/lets-get-real-the-
portion-war-between-big-soda-and-nyc-is-all-about-profit/258546/
24
Cowan, Tim Hortons’ New Coffee Cup - Why the Supersize?, CAN. BUSINESS
(Feb. 12, 2014) (“These days, fast-food joints are vigorously pushing larger
portions”).65
The body of scientific evidence strongly suggests that ever-larger
sugary drink sizes have played, and continue to play, a significant role in the
continuing crisis of obesity and diet-related disease.
IV. REDUCING CONSUMPTION OF SUGARY DRINKS BY
DECREASING THE DEFAULT PORTION SIZE CAN HELP
STEM THE TIDE OF OBESITY AND DIET-RELATED
DISEASE.
Just as increased consumption of sugar-sweetened beverages
contributes to weight gain, see Catherine S. Berkey et al., Sugar-Added
Beverages and Adolescent Weight Change, 12 OBESITY RES. 778 (2004),66
so reducing sugary drink consumption is a useful way to combat obesity and
associated chronic disease. Woodward-Lopez, To What Extent Have
Sweetened Beverages Contributed to the Obesity Epidemic? (estimating that
sweetened beverages account for at least one-fifth of the weight gained
between 1977 and 2007 in the U.S. population and concluding that actions
65 Available at http://www.canadianbusiness.com/business-strategy/tim-hortons-new-
coffee-cup-why-the-supersize/
66 Available at http://onlinelibrary.wiley.com/doi/10.1038/oby.2004.94/full
25
successful in reducing sweetened beverage consumption are likely to have a
measurable impact on obesity).
Research strongly suggests that decreasing sugar-sweetened beverage
consumption can reduce the prevalence of obesity and obesity-related
diseases among children. See Frank B. Hu, Resolved: There Is Sufficient
Scientific Evidence That Decreasing Sugar-Sweetened Beverage
Consumption Will Reduce the Prevalence of Obesity and Obesity-Related
Diseases, 14 OBESITY REVS. 606 (2013) (concluding (1) that there is
substantial evidence that sugar-sweetened beverages cause excess weight
gain and are unique dietary contributors to obesity and type 2 diabetes, and
(2) that reducing sugar-sweetened beverage consumption will have a
significant impact on the prevalence of obesity and diabetes);67 Cara
Ebbeling et al., A Randomized Trial of Sugar-Sweetened Beverages and
Adolescent Body Weight, 367 NEW ENG. J. MED. 1407 (2012);68 Janne C. de
Ruyter et al., A Trial of Sugar-Free or Sugar-Sweetened Beverages and
Body Weight in Children, 367 NEW ENG. J. MED. 15 (2012).69
Reducing portion size is an effective means of accomplishing
reduction in intake. Just as increasing portion size increases the
67 Available at http://www.kickthecan.info/files/documents/Hu-
allsion%20SSB%20debate%20Obes%20Rev.pdf
68 Available at http://www.nejm.org/doi/full/10.1056/NEJMoa1203388
69 Available at http://www.nejm.org/doi/pdf/10.1056/NEJMoa1203034
26
consumption of sugar-sweetened beverages, see Flood, The Effect of
Increased Beverage Portion Size on Energy Intake at a Meal, so reducing
the default portion size decreases the amount consumed. See Barbara J.
Rolls et al., Reductions in Portion Size and Energy Density of Foods are
Additive and Lead To Sustained Decreases In Energy Intake, 83 AM. J.
CLINICAL NUTR. 11 (2008).70
This link is particularly relevant with respect to underserved
communities, where sugary drinks are consumed at a disproportionate rate.
Because obesity, diabetes, and other negative health consequences of excess
sugar-sweetened beverage intake cluster in low-income communities, the
health benefit gained from reducing sugar-sweetened beverage consumption
is likely to be greater for low-income individuals. Y. Claire Wang & Seanna
Vine, Caloric Effect of a 16-ounce (473-mL) Portion-Size Cap on Sugar-
Sweetened Beverages Served in Restaurants, 98 AM. J. CLINICAL NUTR. 430
(2013) (concluding that “a policy to cap portion size is likely to result in a
modest reduction in excess calories from [sugar-sweetened beverages],
especially among young adults and children who are overweight”).71
70 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1474143/
71 Available in Addendum of Amici Curiae filed with this brief.
27
As those who live and work in New York’s underserved
neighborhoods observed in their comments to the Board about the proposed
Rule, “the argument advanced by opponents that the restriction of beverage
size unfairly stigmatizes the poor is hollow. In fact, it will ease an unfair
burden on the poor of being the helpless victims of an industry where profits
trump good health.” Comment of Pastor Brian L. Carter, President, Borough
of Brooklyn Ecumenical Advisory Group.72
CONCLUSION
The Board adopted the portion-size rule in response to an acute public
health crisis – perhaps the most urgent public health crisis of our time. The
continuing scourge of obesity, type 2 diabetes, and other diet-related
diseases is one that has hit New York City particularly hard, especially in its
most vulnerable communities. It is in those same communities that the rate
of sugar-sweetened beverage consumption is at its highest. As the scientific
literature makes clear, this connection is no coincidence. The link between
heightened consumption of sugar-sweetened beverages and diet-related
disease is well established.
Nonetheless, the beverage company petitioners in this case have
72 Available at http://www.nyc.gov/html/doh/downloads/pdf/boh/article81-response-to-
comments.pdf, at 10.
28
asserted, under Section 7803 of the New York Code, that the portion-size
rule is arbitrary and capricious. An Article 78 challenge requires the parties
challenging a regulation to carry “the heavy burden of showing that the
regulation is unreasonable and unsupported by any evidence.” Consolation
Nursing Home, Inc. v. Comm’r of N.Y. State Dep’t of Health, 85 N.Y.2d
326, 331-32 (1995). That is manifestly not a standard that the petitioners in
this case can meet.
The problem that the Rule addresses – the impact of sugary drinks in
contributing to obesity and other diet-related chronic disease – is an issue of
importance and urgency for millions of New Yorkers. The crisis calls for
action – including the incremental action of reducing the portion sizes of
sugary drinks in restaurants. For the one of every three children born in
2000 who will develop type 2 diabetes, and for the one of every two
African-American and Hispanic girls who will get the disease, the question
is not whether the Rule was justified but rather “What else is being done?”73
It is for their sake that the Rule was adopted. It is for their sake that the
73 See brief of amici curiae National Association of County and City Health Officials et
al. (setting out in detail the wide array of obesity- and diabetes-prevention measures
being undertaken by the Board of Health and the City as a whole).