To be argued by
FAYNG
(20 Minutes Requested)
COURT OF APPEALS
STATE OF NEW YORK
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-Appellants.
APPELLANTS' REPLY BRIEF
ZACHARY W. CARTER,
Corporation Counsel of the
City ofNew York,
Attorney for Respondents-Appellants,
100 Church Street,
New York, New York 10007.
Tel: (212) 356-0843 or 2505
Fax: (212) 356-2509
FNg@law.nyc.gov
PAMELA SEIDER DOLGOW,
TREVOR D. LIPPMAN,
MARK MUSCHENHEIM,
SPENCER FISHER,
FAYNG,
of Counsel.
February 26,2014
Reproduced on Recycled Paper
APL
2013-00291
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
PRELIMINARY STATEMENT 1
POINT I
PETITIONERS HAVE FAILED TO CITE
TO ANY CASE LAW OR LEGISLATIVE
CHANGES EXTINGUISHING THE
BOARD'S LEGISLATIVE AUTHORITY
RECOGNIZED BY THIS COURT 8
POINT II
IN ANY EVENT, THE BOARD'S ACTION
WITHSTANDS AN ANALYSIS UNDER
BOREALI V. AXELROD, 71 N.Y.2d 1
(1987) 24
POINT III
THE PORTION CAP RULE IS NOT
ARBITRARY OR CAPRICIOUS 41
CONCLUSION 49
i
TABLE OF AUTHORITIES
CASES
Boreali v. Axelrod,
71 N.Y.2d 1 (1987) 5,20,24-26,36,37,40
Bourquin v. Cuomo,
85 N.Y.2d 781 (1995) 35
Clark v. Cuomo,
66 N.Y.2d 185 (1985) 36
Consolidated Edison Co. v. Dep't of Environmental Conservation,
71 N.Y.2d 186 (1988) 35
Diamond v. Cuomo,
70 N.Y.2d 338 (1987),
appeal dismissed, 486 U.S. 1028 (1988) 45-46
Festa v. Leshen,
145 A.D.2d 49 (1st Dep't 1989) 36
Finegan v. Cohen,
275 N.Y. 432 (1937) 9
Glass v. City of New York,
Index No. 121839/99,
2002 N.Y. Misc. LEXIS 768 (Sup. Ct., N.Y. Co. 2002) 20
Grossman v. Baumgartner,
17 N.Y.2d 345 (1966) 10,27,28
Humane Society v. City of New York,
188 Misc. 2d 735 (Sup. Ct., N.Y. Co. 2001) 20
Matter of Baldwin Union Free School District v. County
of Nassau,
N.Y.3d (February 18, 2014) 15
ii
Matter of Citizens for An Orderly Energy Policy v. Cuomo,
78 N.Y.2d 398 (1991) 33
Matter ofComptroIler v. Mayor of the City of New York,
7 N.Y.3d 256 (2006) 34
Matter of Knight-Ridder Broadcasting, Inc. v. Greenberg,
70 N.Y.2d 151 (1987) 21
Mayor of City of Mount Vernon v. City Council
of City of Mount Vernon,
87 A.D.3d 67 (2d Dept. 2011) 18
Mayor of the City of New York v. Council
of the City of New York,
9 N.Y.3d 23 (2007) 18
Metropolitan Board 0 Health v Heister,
37 N.Y. 661 (1898) 12
Morin v. Foster,
45 N.Y.2d 287 (1978) 19
Neils v. City of Yonkers,
38 Misc. 2d 691 (Sup. Ct., Westchester Co. 1962) 19
New York State Health Facilities Ass'n v. Axelrod,
77 N.Y.2d 340 (1991) 35,41,46
N.Y.C Health & Hospitals Corp. v. N.Y. State
Comm'n of Correction,
19N.Y.3d 239 (2012) 14
New York State Restaurant Association v. New York City
Board of Health,
556 F.3d 114 (2d Cir. 2009) 41
Nicholas v. Kahn,
47 N.Y.2d 24 (1979) 33
iii
Paduano v. City of New York,
45 Misc.2d 718 (Sup. Ct. N.Y. Co.),
affd on op. below, 24 A.D.2d 437 (1st Dep't 1965),
affd, 17 N.Y.2d 875 (1966),
cert. denied, 385 U.S. 1026 (1967) 11
People ex reI. Knoblauch v. Warden of Jail of Fourth Dist. Magistrate's Court,
216 N.Y. 154 (1915) 10,27
People v. Blanchard,
288 N.Y. 145 (1942) 11,12,20,27,28
People v. Nemadi,
140 Misc. 2d 712 (Sup. Ct., N.Y. Co. 1988) 20
Perez v. City of New York,
41 A.D.3d 378 (1st Dep't 2007),
Iv. denied, 10 N.Y.3d 708 (2008) 19
Polinsky v. People,
73 N.Y. 65 (1878) 10
Rent Stabilization Association of New York Cit v. Higgins,
83 N.Y.2d 156 (1993),
cert. denied, 512 U.S. 1213 (1994) 35
Schulman v. New York City Health & Hospitals Corp.,
38 N.Y.2d 234 (1975) 11,13,27
Sorbonne v. Apartments Co. v. Bd Of Helath,
88 Misc.2d 970 (Sup. Ct., N.Y. Co. 1976) 32
CONSTITUTIONALPROVSIONS
New York State Constitution,Article IX 14
New York State Constitution,Artic1e IX, section 3(b) 15
iv
STATUTES AND LAWS
1967 N.Y.C. Local Law No. 127 16-17
1977 N.Y.C. Local Law No. 25 16-17
1979 N.Y.C. Local Law No. 5 16-17
Chapter 410 of the Laws of 1882 9-10
Chapter 628 of the Laws of 1904 9
Chapter 626 of the Laws of 1971 13
N.Y.C. Administrative Code 17-709 44
N.Y.C. Administrative Code 17-717 44
N.Y.C. Charter (1938) § 21. 16
N.Y.C. Charter (1938) § 27 16
N.Y.C. Charter § 21 16
N.Y.C. Charter § 31 23
N.Y.C. Charter § 38(5) 17
N.Y.C. Charter § 553(c) 39
N.Y.C. Charter § 556 23,26
N.Y.C. Charter § 556(c)(2) 23,26,28
N.Y.C. Charter § 556(c)(9) 23,26,28,31
N.Y.C. Charter § 556(e)(4) 26
N.Y.C. Charter § 558(b) 10,13
v
N.Y.C. Charter § 1043(a) 22
N.Y. Alcohol and Beverage Control Law § 105-b(4) 47
N.Y. Municipal Home Rule Law § 23(2)(f) 17
N.Y. Municipal Home Rule Law § 50(3) 15
N.Y. Municipal Home Rule Law § 56(1) 15
N.Y. Public Health Law § 206(1)(b) 42
N.Y. Public Health Law § 206(4)(b) 42
N.Y. Public Health Law § 225(4) 20
N.Y. Public Health Law § 228(3) 13,26
N.Y. Public Health Law § 312 21
RULES AND REGULATIONS
10 N.Y.C.R.R. §14-1.190(b) 42
24 R.C.N.Y. § 11.01 44
24 R.C.N.Y. § 11.07 30-31
24 R.C.N.Y. § 47.61 31,38
24 R.C.N.Y. § 71.05 45
24 R.C.N.Y. § 81.50 31
24 R.C.N.Y. § 141.05 30
24 R.C.N.Y. § 173.03 43
vi
24 R.C.N.Y. § 173.13 30
24 R.C.N.Y. § 181.07 44
OTHER AUTHORITIES
Briefing Paper of the Committee on Rules, Privileges and Elections" dated
September 21, 2011, accessible at
http://legistar.council.nyc.govNiew.ashx?M=F&ID=1564868&GUID=E40780A
C-F987-49E8-BDF4-D46909F60B80 30
John Toscano, Vallone's Trans Fat Ban Signed By Mayor, The Queens Gazette,
April 4, 2007 29
New York City Charter Revision Commission, Report of the New York City
Charter Revision Commission at 38 (1936) 9
New York City Charter Revision Commission, December 1986- November 1988,
The Report: Volume Two 22
Gp. Atty. Gen. (Inf.) No. 82-40. .. 18
Proceedings of the Council of the City ofNew York, January 3 to April 26, 1979
(Vol. I-A), at 452 17
Quanhe Yang, PhD, Zefeng Zhang, MD, et aI., Added Sugar Intake and
Cardiovascular Diseases Morality Among US Adults. JAMA Internal medicine
(Feb. 3, 2014) 8
Thomas Frieden, Mary Bassett, et al., Public Health in New York City, 2002-2007;
Confronting Epidemics of the Modem Era, Int. J. of Epidemiology, vol. 37, issue
5 (2008) 27-28
Transcripts of the Minutes of the N.Y.C City Council Hearings on Local law 12 of
2007 (Artificial Trans Fat) 30
vii
PRELIMINARY STATEMENT
Respondents-Appellants, the New York City Department of Health
and Mental Hygiene ("Department"), the New York City Board of Health
("Board") and Dr. Mary T. Bassett, in her capacity as the Commissioner of the
Department) (collectively "appellants"), submit this brief in reply to arguments
raised by Petitioners-Respondents ("petitioners") in their brief.
Petitioners open their brief with the contention that this case is not
about obesity. They attempt to sidestep the fact that sugary beverages, uniquely
among all food items, are clearly linked to the obesity epidemic, and instead try to
make this case about individual liberty. According to them, New Yorkers have a
fundamental right to be served soda in an oversized cup. This case, however, is
not about individual liberty. It is about whether the Board of Health can exercise
authority granted to it by the Charter of the City of New York to enact a modest
rule regulating the conduct of food service establishments that would slow the
deadly epidemic of obesity.
Petitioners do not attempt to challenge the record evidence that (1)
there is a clear link between the overconsumption of sugary drinks and obesity,
type 2 diabetes, and cardiovascular disease; (2) more than 5,000 New Yorkers die
1 Dr. Bassett was appointed the Commissioner by Mayor Bill de Blasio effective February 14,
2014.
every year from complications associated with being overweight or obese; (3) 58
percent of adult City residents are now overweight or obese, as are 40 percent of
the City's public school children (K-8); (4) sugar-sweetened drinks are the largest
single source of added sugars in the diet, contain no nutritional value, and do not
provide a feeling of fullness; (5) food service establishments have over time
increased the sizes of the portions they serve, leading to increased consumption by
consumers; and (6) consumer consumption of foods and beverages is strongly
influenced by the portion sizes they are given.
Petitioners cannot seriously argue that the Board has no authority to
address this disease threat. The Portion Cap Rule is a narrow, science-based
intervention designed to make the healthier choice the easier choice for consumers
by addressing how businesses regulated by the Department serve a category of
products that has been repeatedly linked to weight gain, obesity and a variety of
diseases. The adoption of this Rule is not a departure from the Board's traditional
authority. Rather, it is in step with previous initiatives, like the restriction on the
use of artificial trans fats and the requirement to post calorie counts on menus, to
address chronic disease in New York City. The reality is that petitioners simply do
not like this measure. They want to continue to sell sugary drinks in increasingly
larger containers because this practice, while posing a clear health risk to their
consumers, is profitable.
2
The issues before this Court are (1) did the Board have the authority,
whether legislative or regulatory in nature, to adopt the Portion Cap Rule, and (2)
is the Portion Cap Rule supported by a rational basis and is not arbitrary or
CaprICIOUS. The answer to both these questions is "yes."
The Board had the authority to adopt the Rule to address the obesity
epidemic and consequently, petitioners should not be permitted to block the Board
from protecting the health of the City's citizens. While petitioners attempt to
distract the Court with imagined, future overreaches by the Board, the Portion Cap
Rule is not a ban and does not take away the consumer's "free will". It merely
regulates the size of containers that food service establishments use to serve a
product. Consumers who wish to drink more than 16 ounces of a sugary drink can
easily do so by buying a second drink, or getting a refill. In making their decisions
to consume such quantities of sugary drinks, however, consumers will be prompted
to consider the amounts they are consuming - thus making informed choices about
how much they want to consume rather than having choices made for them by the
beverage and restaurant industries.
In an attempt to obfuscate appellants' arguments, petitioners
completely misstate appellants' argument regarding the separation of powers
doctrine. Although the State Constitution does not mandate that local governments
follow the separation ofpowers doctrine, appellants do not dispute that the doctrine
3
applies to localities based on the structure of their respective local governments.
Thus, in this case, the principles must be applied in accordance with the New York
City Charter, which specifically grants the Board broad authority in the area of
public health, historically described by this Court as "legislative."
Whether the Board is a legislative body which enacts local laws is not
in dispute, for clearly it is not. The fact that the Board is organizationally housed
within an agency or that Health Code amendments comply with the rule-making
procedures set forth in the City Administrative Procedure Act ("CAPA") is also
not pertinent. The issue is whether the City Charter vests the Board, whose
members it requires to have health expertise, with power to enact substantive rules
and standards in the area of public health. As discussed in Point I of appellants'
opening brief, the Board's authority to do so has been confirmed in successive
New York City Charters, and upheld repeatedly by this Court. In finding that the
Board exceeded its authority in adopting the Rule, the Appellate Division did not
address this Court's precedents on this issue. In their brief, petitioners call this
Court's language in those cases "imprecise" or "stray" and argue that the Charters
relied on by appellants are "ancient". They fail, however, to cite any case law or
legislative changes extinguishing the Board's legislative authority. The Board of
Health is a body created specifically to address issues of public health importance
to New York City, including chronic diseases, through amendments of the Health
4
Code. Taking this action is not only within its authority, but given the magnitude
of the obesity crisis in New York City, it fulfills the obligation that the Board has
under the Charter (Point I, infra).
Even applying the general principles of agency regulatory authority
and this Court's decision in Boreali v. Axelrod, 71 N.Y.2d 1 (1987), the adoption
of the Portion Cap Rule was a valid exercise of the Board's authority (Point II,
infra). The Boreali clean slate prong tips decidedly in appellants' favor. The
Board's broad authority, whether characterized as legislative or regulatory in
nature, allows it to respond to the public health challenges faced by a large and
diverse city in a timely and effective manner. It would be an unprecedented, and
unfounded, curtailing of the Board's authority to prohibit the Board from
responding to the fact that overconsumption of sugary beverages is causing
obesity, type-2 diabetes and heart disease - the major disease threats of this era-
merely because the City Council has not acted in this area. And such a curtailing
could have serious consequences in the future if the Board cannot similarly react to
other health concerns without City Council action.
In reviewing these issues, this Court should be wary of petitioners'
mischaracterizations of appellants' arguments. Throughout their brief, petitioners
disingenuously contend that appellants "acknowledge" certain matters. However,
the pages of appellants' briefs cited by petitioners do not support petitioners'
5
assertions. For example, appellants have never contended that the Board has
exclusive, universal legislative authority in all areas of public health, or that its
powers are "unchecked." In fact, the Department of Health and the City Council
have previously acted in harmony on issues concerning public health. An example
of this is the adoption of the Health Code and Administrative Code provisions
restricting the use of artificial trans fats.
There is no basis for petitioners' contention that a decision upholding
the Portion Cap Rule would grant the Board unbridled authority, inviting it to
adopt far-reaching and intrusive measures. The Courts retain the power to strike
down future enactments that might extend beyond the authority that the Charter
has conveyed to the Board, or are arbitrary, capricious or not rationally based, but
such is not the case with the Portion Cap Rule. Further, petitioners' reliance on
speculative hypotheticals is a scare tactic not based on the historical practices of
the Board. For approximately one hundred years, the Board has been vested with
broad authority as recognized by this Court. Yet, petitioners fail to cite a single
instance where the Board in the past has overreached or abused its authority to
protect the public health or acted without a rational basis. Indeed, petitioners
explicitly defend and cite authority for numerous instances of Board action (Resp.
Br., pp. 37-40). Thus, this Court should not be distracted by petitioners' alarmist
cry.
6
Finally, petitioners' claim that the Rule is arbitrary and capricious is
also without merit. Petitioners do not argue that there is no rational basis for the
Rule. Rather, they contend the Rule is arbitrary and capricious because it does not
apply to all places where food is sold and to beverages beyond sugar-sweetened
drinks. This characterization is grossly inaccurate. The Board designed a rule that
applied to all of the establishments that it licenses. The Rule follows the scientific
evidence connecting sugary drinks and obesity, type 2 diabetes and heart disease;
every aspect of it has a scientific rationale.
Indeed, far from being an arbitrary line drawing, the application of the
portion size rule to the food service establishments regulated by the Department -
meaning to those establishments primarily selling ready-to-eat foods most likely to
be consumed immediately, and not to the stores selling food predominantly for
home consumption - is rational and consistent with the public health purpose of
the rule.
Although the Appellate Division did not reach the issue of whether
the Rule was arbitrary and capricious, we respectfully submit that this Court should
address it rather than remitting the case to the Appellate Division. Not only is this
legal issue fully briefed by both parties, but petitioners' Boreali argument
incorporates by reference the arguments they make in their arbitrary and capricious
point. Thus, in the interests of judicial economy, and in light of the public's
7
interest in not further delaying the implementation of this important health
initiative, this Court should consider the issue and find that the Rule is not arbitrary
or CaprICIOUS.
In sum, while petitioners attempt to obfuscate the issue, this case is
about public health and rising obesity rates.2 It was within the Board's legislative
and regulatory authority to adopt the Portion Cap Rule to address this health
concern. The Rule was rationally based and was not arbitrary or capricious.
Accordingly, the Decision and Order (one paper) appealed from should be reversed
and the Petition dismissed.
POINT I
PETITIONERS HAVE FAILED TO
CITE TO ANY CASE LAW OR
LEGISLATIVE CHANGES
EXTINGUISHING THE BOARD'S
LEGISLATIVE AUTHORITY
RECOGNIZED BY THIS COURT.
Petitioners argue that the Board has no legislative authority and that it
is "subordinate" to the City Council and the State Public Health Council (Resp.
Br., p. 4). Petitioners, however, fail to cite to any authority, statutory or judicial,
which supports this assertion. In fact, there is none because the Board's authority
2 A recent study has reaffirmed the findings in the record of the link between the
overconsumption of sugary drinks and cardiovascular disease. See, Quanhe Yang, PhD, Zefeng
Zhang, MD, et aI., Added Sugar Intake and Cardiovascular Diseases Morality Among US Adults.
lAMA Internal Medicine (Feb. 3, 2014) ("In our analysis, regular consumption of sugar-
sweetened beverages (~ 7 servings/wk) was associated with increased risk of CVD mortality").
8
to adopt substantive standards in the area of public health is rooted in state law and
has been recognized by this Court for over one hundred years.
New York City Charter section 558, subdivisions (b) and (c) set forth
the Board's powers to amend the Health Code, and can be traced back for over one
hundred years. The 1936 Charter Revision Commission noted that "The Board of
Health exercises extraordinary police powers affecting the health of the city. By
its power to adopt a sanitary code [now the Health Code] the Board has plenary
powers of legislation." New York City Charter Revision Commission, Report of
the New York City Charter Revision Commission at 38 (1936). The Commission
further noted the Board's "important legislative and semijudicial powers." Id. As
explained in greater detail in appellants' main brief (at p. 21 n. 6), this Court has
held that the acts of the 1936 Commission had the force of state law. See,~,
Finegan v. Cohen, 275 N.Y. 432, 436 (1937) (stating that "[b]y this method the
Legislature amended or revised the charter of the city of New York").
Further, the Board's powers generally do not originate in the 1936
revision, and may be found in an almost identical form in § 1172 of the former
Greater New York Charter, as amended by Chapter 628 of the Laws of 1904. This
section was enacted entirely by the State Legislature. Indeed, as demonstrated by
earlier decisions of this Court, the Board's powers with respect to the Health Code
originate in 19th Century state legislation. See, L. 1882, ch. 410 (Consolidation
9
Act of 1882), § 575 (containing language about the Sanitary Code substantially
identical to modem Charter § 558(b), stating that the Board "may therein publish
additional provisions for the security of life and health in the city").
Petitioners argue that language in this Court's precedents recognizing
the Board's legislative authority based on these Charter provisions was 'imprecise"
or was simply "stray language" (Resp. Br., pp. 23, 33). To the contrary, the
explicit language employed by this Court recognizing the extraordinary legislative
power of the City's Board of Health could not be clearer. See, Polinsky v. People,
73 N.Y. 65, 69-70 (1878) ("That the Legislature in the exercise of its constitutional
authority may lawfully confer on boards of health the power to enact sanitary
ordinances, having the force of law within the districts over which their jurisdiction
extends, is not an open question. This power has been repeatedly recognized and
affirmed."); People ex reI. Knoblauch v. Warden of Jail of Fourth Dist.
Magistrate's Court, 216 N.Y. 154, 162 (1915) ("the board is a statutory body and
its authority and powers are such only as are conferred by the statutes, but those
powers are very broad -- well-nigh plenary") (emphasis added); Grossman v.
Baumgartner, 17 N.Y.2d 345, 351 (1966) ("the Legislature intended the Board of
Health to be the sole legislative authority within the City of New York in the field
of health regulations as long as those regulations were not inconsistent with or
contrary to State laws dealing with the same subject matter") (emphasis added);
10
see, also, Schulman v. New York City Health & Hospitals Corp., 38 N.Y.2d 234,
237 n.l (1975) (citing Grossman, the Court recognized that the Board could act in
a legislative manner and noted that "the Board of Health has been recognized by
the Legislature as the sole legislative authority in the field of health regulation in
the City of New York") (emphasis added); People v. Blanchard, 288 N.Y. 145, 147
(1942) ("the Sanitary Code [now the Health Code] is to be taken to be a body of
administrative provisions sanctioned by a time-honored exception to the principle
that there is to be no transfer of the authority of the Legislature"); Paduano v. City
of New York, 45 Misc. 2d 718, 721 (Sup. Ct. N.Y. Co.), affd on op. below, 24
A.D.2d 437 (1st Dep't 1965), affd, 17 N.Y.2d 875 (1966), cert. denied, 385 U.S.
1026 (1967) (the Appellate Division affinned the decision of the lower Court,
which cited to and quoted from the report of the 1936 New York City Charter
Revision Commission, stating that the City's Charter "is intended to confer
'extraordinary' and 'plenary' powers of legislators for the protection of health
upon the Board of Health," and that the "'Board of Health exercises extraordinary
police powers affecting the health of the City. By its power to adopt a Sanitary
Code the Board has plenary powers of legislation"') (emphasis added).
Petitioners' attempts to distinguish these cases are wholly without
merit. Petitioners contend that this Court in Blanchard did not recognize any
special authority in the Board (Resp. Br., pp. 26-27). This Court in Blanchard
11
stated that the substantive law-making power was invested in the Legislature and
that only the Legislature could define crimes and the prescription of punishment;
however, this Court also recognized that the City Sanitary Code, now the Health
Code, was a duly promulgated code of a local board with expertise in public
health, constituting a "time-honored exception to the principle that there is to be no
transfer of the authority of the Legislature." In so doing, this Court cited its 1878
decision in Polinsky, which referred to a portion of the Sanitary Code as an
"ordinance" having "the force of law," and an earlier case with a similarly
expansive view of the Board's powers.
This Court in Blanchard also cited Metropolitan Board of Health v.
Heister, 37 N.Y. 661, 670 (1898), wherein this Court stated that "from the earliest
organization of the government, the absolute control over persons and property, so
far as the public health was concerned, was vested in boards or officers, who
exercised a summary jurisdiction over the subject, and who were not bound to wait
the slow course of the law." The citations in Blanchard to Polinsky and
Metropolitan emphasize the continuity of over a hundred years of this Court's
understanding of the Board's broad powers. Thus, Blanchard is not inconsistent
with appellants' argument that the Board is not the legislative body of the City, but
has broad authority, legislative in nature, with respect to issues of public health.
12
Petitioners also contend that Grossman is no longer good law because
of the 1971 amendment to the Public Health Law (Resp. Br., p. 35). Grossman
explicitly recognized the Board as "the sole legislative authority within the City of
New York in the field of health regulations." Although the amendment, Chapter
626 of the Laws of 1971, made New York City subject to the State Sanitary Code,
it purposefully did not curtail the Board's authority at the local level set forth in the
Charter and recognized by this Court. Indeed, § 228(3) of the Public Health Law
explicitly provides that the State Sanitary Code is merely a regulatory floor, and
that local provisions "which comply with at least the minimum applicable
standards set forth in the sanitary code shall be deemed not inconsistent with such
code."
In Grossman, which was decided before the 1971 amendment, this
Court rejected the argument that the Board was preempted, noting that the State
Sanitary Code did not apply to New York City. In finding that the Board of Health
had legislative authority, however, this Court relied on the relevant Charter
provisions governing the Board's powers and not on the City's exemption from the
State Sanitary Code. The Court in Grossman cited to its earlier decision in
Blanchard, wherein this Court recognized the Board's legislative authority
pursuant to Charter § 558.
13
Further, after the 1971 amendment, this Court reaffirmed the Board's
legislative authority. See, Schulman, 38 N.Y.2d 234 (1975) (citing Grossman). In
rejecting "Appellant's preliminary challenge" based on privilege to the Health
Code requirement that a termination of pregnancy form include names and
addresses, this Court stated "since the physician-patient privilege is wholly a
creature of statute,. .. it may be abrogated legislatively. Such is the case here
since the Board of Health has been recognized by the legislature as the sole
legislative authority in the field of health regulation in the City of New York." Id.
at 237, n. 1. Petitioners' reliance on N.Y.C Health & Hospitals Corp. v. N.Y. State
Comm'n of Correction, 19 N.Y.3d 239 (2012) (Resp. Br., p. 35), for the
proposition that an agency also has the authority to abrogate the attorney-client
privilege misses the point. In Schulman, this Court cited the legislative authority
of the Board.
Petitioners also argue that the above case law is no longer viable
because of a revised Home Rule Article (Article IX) of the State Constitution
enacted in 1963, which they contend changed the structure of City government,
including the powers of the Board (Resp. Br., p. 21). Article IX, section 3(b),
14
however, specifically grandfathered all existing provisions of law such as those
governing the powers of the Board.3
Similarly, the adoption by the State legislature of the new Municipal
Home Rule Law ("MHRL") in 1963, implementing the revised Article IX did not
affect the powers of pre-existing Boards, such as the Board. See, MHRL § 50 (3)
("It is not the intention of the legislature hereby to abolish or curtail any rights,
privileges, powers or jurisdiction heretofore conferred upon or delegated to any
local government or to any board, body or officer thereof, unless a contrary
intention is clearly manifest from the express provisions of this chapter or by
necessary intendment therefrom, ..."); MHRL § 56(1) ("All existing valid
provisions of laws, charter and local laws not specifically repealed by this chapter
shall continue in force until lawfully repealed, amended, modified or superseded").
As discussed at pages 21-23 of appellants' main brief, the Board's powers under
Charter §§ 558(b) and (c) and 556 can be traced back to Chapter 628 of the laws of
1904, earlier statutes from the 19th century, and the 1936 Charter and its powers
were grandfathered by these savings clauses. Compare, Matter of Baldwin Union
Free School District v. County of Nassau, _ N.Y.3d _ (February 18,2014). (This
Court rejected the County's argument that certain taxing authority was
3 Article IX, § 3(b) provides "The provisions of this article shall not affect any existing valid
provisions of acts of the legislature or of local legislation and such provisions shall continue in
15
grandfathered, stating that the 1963 saving clause "preserved only pre-existing
statutory home rule powers" because the County had no such pre-existing powers)
(emphasis in the original).
Indeed, Grossman, Paduano, and Schulman were decided after the
1963 enactment of the modern home rule provisions of State Constitution Article
IX and the enactment of the Municipal Home Rule Law to implement those
prOVIsIOns. Thus, neither of these legislative enactments affected the Board's
authority.
Petitioners also cite to the following language in Charter § 21: "[t]here
shall be a council which shall be the legislative body of the city" and that "the
council shall be vested with the legislative power of the city" (Resp. Br., p. 22).
This language was in the 1938 Charter. See, 1938 Charter §§ 21, 27. It, thus, in
no way limits the Board's historic powers, which have been recognized many
times since 1938.
Finally, petitioners argue that local laws passed by the City Council in
1967, 1977, and 1979 curtailed the Board's powers (Resp. Br., p. 31). This
argument is misplaced because these enactments did not address the authority of
the Board. The first two of these laws, 1967 N.Y.C. Local Law No. 127 and 1977
force until repealed, amended, modified or superseded in accordance with the provisions of this
constitution."
16
N.Y.C. Local Law No. 25, dealt with the agency within which the Board was
housed (i.e., predecessor agencies to the present Department of Health and Mental
Hygiene).
The third law cited by petitioners, Local Law No.5 of 1979, removed
language referring to the ability of the Board to act in areas beyond public health
(Charter § 558(c)). The Report of the Council Committee on Health was explicit
in setting forth the narrow scope of the amendment: "The bill attempts to clarify
the authority of the Board of Health and should not be viewed as a restriction of
their powers, in light of the original intent for the establishlnent of the Board of
Health." Proceedings of the Council of the City of New York, January 3 to April
26, 1979 (Vol. I-A), at 452 (emphasis added) (Resp. Addendum, at ADD41).
Thus, Local Law 5 of 1979 also did not curtail the Board's authority in the area of
public health.
The fact that Local Law 5 of 1979 was not submitted for approval of
the electors further evidences that it did not curtail the Board's authority. See,
Report of the Committee on Health, Intro No. 552 (1979) ("this legislation does
not fall into any category of section 39 of the charter, requiring a local law to be
submitted for the approval of the electors"). If the City Council had intended to
alter the structure of the Board's powers, a referendum would have been required
under Municipal Home Rule Law § 23(2)(f) and Charter § 38(5). Those provisions
17
require that a local law that "[a]bolishes, transfers or curtails any power of an
elective officer" must be submitted for approval of the electors at a general
election. The Mayor, subject to the Council's advice and consent, has the power to
appoint the Board's members to their terms. Any curtailment of the Board's
historical broad powers would thus alter the balance of power between the City
Council and the Mayor, and a referendum would have been required. See, Mayor
of the City of New York v. Council of the City of New York, 9 N.Y.3d 23, 33
(2007) (the requirement of a referendum "applies to legislation that impairs a
power conferred on the officer as part of the framework of local government.");
Mayor of City of Mount Vernon v. City Council of City of Mount Vernon, 87
A.D.3d 67 (2d Dept. 2011) (Local law abolishing Office of Inspector General
required referendum where the authority to appoint an Inspector General is vested
in the Mayor).4
Further, it must be emphasized that some of the very protections that
assist In ensuring the Board's independent judgment, such as terms extending
4 Substantive reduction of the powers of the Board of Health, because they are structural in City
government, would curtail the powers of the Mayor as the appointing authority, thereby
requiring a referendum. If this were not the case, then the protection afforded to elected
officials by Municipal Home Rule Law section 23 would be hollow. The Attorney General has
noted that if a distinction were made between a transfer of the power of appointment from one
elected official to another and a transfer of duties of an appointed official to an appointee of a
different elected official, then "it would be possible, without referendum, to transfer all of the
duties of an appointee of an elective official and thus accomplish indirectly what could not be
done directly through a transfer of the power of appointment." Gp. Atty. Gen. (Inf.) No. 82-40.
18
beyond those of the appointing officials and Council advice and consent for
appointees, highlight its carefully crafted structural importance, for which statutory
referendum protections must be applied if the powers of the Board are curtailed.
See Morin v. Foster, 45 N.Y.2d 287 (1978) (repeal of four-year term for county
manager constituted a curtailment of appointing authority); Neils v. City of
Yonkers, 38 Misc. 2d 691, 697 (Sup. Ct., Westchester Co. 1962) (addition of
advice and consent triggers referendum requirement).
Thus, petitioners have not identified any legislative acts, including
any Charter revisions, which have limited the Board's historic powers. See, Perez
v. City of New York, 41 A.D.3d 378 (1st Dep't 2007), Iv. denied, 10 N.Y.3d 708
(2008) ("It is a cardinal principle of statutory interpretation that the intent to
change a long-established rule or principle is not to be imputed to the legislature in
the absence of a clear manifestation") (internal quotation marks omitted).
Moreover, petitioners have not cited to any decisions by this Court
that have overruled the appellate precedents which have explicitly recognized the
Board's legislative authority. To the extent that the lower court decisions cited by
petitioners (Resp. Br., pp. 37) can be read to hold that the Board's authority is only
"administrative in nature," those lower decisions cannot be harmonized with this
Court's precedents. Indeed, other lower court decisions have recognized the broad
powers of the Board, explicitly relying upon the very case law that respondents
19
improperly assert to have been somehow overruled sub silentio. See,~, Glass v.
City of New York, Index No. 121839/99,2002 N.Y. Misc. LEXIS 768 (Sup. Ct.,
N.Y. Co. 2002); Humane Society v. City of New York, 188 Misc. 2d 735,738-739
(Sup. Ct., N.Y. Co. 2001); People v. Nemadi, 140 Misc. 2d 712,723-724 (Sup. Ct.,
N.Y. Co. 1988).
Also without merit is petitioners' argument that the Board has no
greater powers than the State Public Health Council ("PHC"), which was found in
Boreali v. Axelrod, 71 N.Y.2d 1 (1987), not to have the authority to enact certain
prohibitions on smoking (Resp. Br., pp. 29). The PHC, however, was not vested
with the broad authority conferred upon the Board that has long been recognized
and confirmed by the appellate courts. The governing statutory provisions vest the
Board with much more extensive power, and unlike the PHC, the Board can amend
the Health Code without approval of any other body or official. See, Public Health
Law § 225(4) (although the PHC can establish, amend and repeal the Sanitary
Code, its actions are subject to approval by the commissioner of the State DOH).
Compare, Charter § 58(b).
Further, as emphasized in Blanchard, the Board is different from the
PHC in that it is not a body of State government seeking to act statewide without
legislative authority; rather it has received a direct delegation from the State
Legislature to act locally on public health matters, in accordance with a "time-
20
honored exception to the principle that there is to be no transfer of the authority of
the Legislature." Blanchard, 288 N.Y. at 147.
Although the State Sanitary Code now applies to the City of New
York, the State Public Health Law specifically carves out New York City alone
from the applicability of the sections of Article 3 of the Public Health Law
governing local health officers and local boards of health. Public Health Law,
§ 312. Thus, State law confirms the uniqueness of New York City in its authority
to enact its own public health requirements. Petitioners contend that by carving
out New York City from these provisions of Article 3, the State legislature
intended to permit the City Council, and not the Board, to exercise plenary
authority to enact legislation in the area of public health (Resp. Br., pp. 32-33).
This argument is meritless. Section 312 was last amended in 1953. Both before
and after this amendment, this Court recognized that the Board has plenary
authority. See, Matter of Knight-Ridder Broadcasting, Inc. v. Greenberg, 70
N.Y.2d 151, 158 (1987) (Legislature is presumed to be familiar with existing
decisional law when amending a statute).
Petitioners contend that the Board does not have legislative authority
because it is an administrative agency subject to CAPA. The fact that the Board
follows CAPA or may have some attributes of an administrative agency is not at
21
all dispositive of the issue of whether the Board has the authority to adopt
substantive standards in the area of public health.
CAPA by its own terms does not define the "powers and duties
delegated" to agencies "by or pursuant to federal, state and local law." Charter
§ 1043(a). Rather, it ensures that there is an appropriate mechanism for those
substantive powers to be implemented. To quote the same Charter Revision
Commission report in relation to CAPA that is quoted by respondents, "The
rulemaking authorization is not intended to create any additional substantive
jurisdiction for an agency." The Report, Vol. Two (New York City Charter
Revision Commission, December 1986-November 1988), at 92. See, Resp.
Addendum at ADD49. The Board's promulgations follow the CAPA's procedures
merely because CAPA applies across many of the structures of the City's
government, but CAPA itself does not alter the Board's substantive authority.
Thus, characterization of Health Code amendments as rulemaking is not instructive
as to the actual jurisdiction conferred upon the Board of Health by other provisions
of the Charter.5
5 This report, dated April 1989, is informative, but is technically not legislative history because it
postdates the adoption by the voters of the 1988 Charter revisions at the November 1988 general
election.
22
To be clear, appellants do not argue that the Board's authority is
absolute, or unchecked. Nine of the eleven members are appointed and
reappointed by the Mayor for staggered six-year terms with the advice and consent
of the City Council after a public hearing. See, Charter § 31. The State
Legislature, or the voters acting through a duly authorized referendum, can curtail
the powers of the Board or change its composition. Further, if a Board enactment
extends beyond the limits of its authority, the Courts retain the power to strike
down such enactments.
Because the Portion Cap Rule does not conflict with any local laws
enacted by the City Council, this Court need not address petitioners' arguments as
to whether or to what extent the Board may use its extraordinary powers to act
inconsistently with a local law enacted pursuant to the Council's Charter and home
rule legislative powers. In fact, in the past, the enactments of the two bodies have
generally operated in tandem rather than in conflict.
The only issue in this case is whether a modest intervention regulating
how sugary beverages are served falls within the Board's legislative authority to
"regulate all matters affecting health in the city of New York", to control
"communicable and chronic diseases" and to oversee the "food and drug supply of
the city." Charter §§ 556, 556(c)(2) & (9); 558(c). Based on the Charter and
controlling precedents, it does and thus, Boreali, which concerns whether an
23
administrative agency acts beyond its legislative delegation, has no applicability in
this case.
POINT II
IN ANY EVENT, THE BOARD'S
ACTION WITHSTANDS AN
ANALYSIS UNDER BOREALI V.
AXELROD, 71 N.Y.2d 1 (1987).
As discussed in appellants' main brief (App. Br., pp. 28-55) and
below, applying all four Boreali factors in conjunction with established principles
of administrative law, this Court should find that the adoption of the Portion Cap
Rule was within the Board's regulatory authority.6
First, in finding that the Rule was "written on a clean slate," the
Appellate Division disregarded both legislative language and case law supporting
the Board's broad authority in the area of public health.
Second, the Court incorrectly reasoned that the Board was precluded
from adopting the Rule because five unsuccessful bills in the State Assembly and
three unsuccessful City Council resolutions, while not involving portion sizes,
touched generally upon obesity. This reasoning cannot be hannonized with the
long line of cases by this Court recognizing that legislative inaction is not
6 Petitioners again misstate appellants' position. Petitioners, citing page 13 of appellants' brief,
assert that "Defendants acknowledge that no single factor is dispositive, nor are all four
necessary" CRespo Br., p. 44). Petitioners' citation to appellants' brief does not support this
assertion. In fact, appellants' position has been that this Court invalidated the regulation in
Boreali only after finding the presence of four "coalescing circumstances."
24
indicative of legislative intent, which petitioners do not even address in their
opposition. It also ignores the special significance that this Court placed in Boreali
on the fact that the PHC had only acted "following the Legislature's inability to
reach an acceptable balance" on the precise matter that the PHC was attempting to
regulate. See 71 NY2d at 6.
Third, the Appellate Division's reasoning and petitioners' argument
that the Portion Cap Rule is invalid because it does not cover all food service
establishments and dairy-based, pure juice and alcohol drinks is contrary to
accepted principles of administrative law. Agencies may address an issue
incrementally. Moreover, the distinctions as to which establishments and drinks
are subject to the Rule are based on permissible and rational considerations.
Finally, the Portion Cap Rule was based on scientific studies linking
the overconsumption of sugar-sweetened drinks with chronic disease and was
adopted by the Board members, exercising their expertise, after a consideration of
this evidence. The fact that the former Mayor supported this measure is of no
moment since such support from an executive is not unique in administrative rule-
making.
In sum, none of the Boreali factors are present in this case.
25
(1)
The Portion Cap Rule Was Not Written On A Clean Slate.
The Board's powers are much broader than the grant of authority to
the PHC at issue in Boreali. In addition to its authority to "regulate all matters
affecting the health in the city of New York," and to perfonn acts "as may be
necessary and proper to carry out the provisions" of the chapter, Charter §§ 556
and 556(e)(4), the Board "may therein publish additional provisions for security of
life and health in the city and confer additional powers on the department not
inconsistent with the constitution, laws of this state or this charter." Charter §
558(b).
Further, the Charter vests the Board with very broad authority to
regulate in the area of public health and identifies specific areas that may be
regulated, including the "control of communicable and chronic diseases" and the
oversight of the "food and drug supply of the city." Charter §§ 556(c)(2) & (9)
(emphasis added). In turn, the Board may "embrace in the health code" any of the
matters "to which the power and authority of the department extends." Charter §
558(c).
Finally, unlike the PHC, the Board can amend the Health Code
without approval of any other body or official. See, Public Health Law § 225(4)
(although the PHC can establish, amend and repeal the Sanitary Code, its actions
26
are subject to approval by the commissioner of the State DOH). Compare, Charter
§ 558(b).
As a result of its broad statutory delegation as recognized by this
Court in Knoblauch, Blanchard, Grossman and Schulman, and distinct legislative
history, the Board's relationship with the City Council is markedly different from
that between the PHC and the State Legislature, which had created the PHC.
Petitioners suggest that appellants have acknowledged that the Portion
Cap Rule "was a dramatic departure from the Board's traditional regulatory
authority over 'food establishments,' which ... is limited to 'protect[ing] people
only from infectious agents and other contaminants'" (Resp. Br., pp. 5, 47-48)
(emphasis added by petitioners). IIi support of this, they cite to Public Health in
New York City, 2002-2007; Conf]'onting Epidemics of the Modern Era, Int. J. of
Epidemiology, vol. 37, issue 5 (2008), an article authored by, among others, the
present and former Health Commissioners. There was, however, no such
acknowledgment of the limitations of the Board's powers by the Commissioners in
that article. Rather, the authors stated
Regulation of food establishments to protect
health has long been a core function of
public health agencies, but traditionally it
has been used to protect people only from
infectious agents and other contaminants. In
2006, DOHMH expanded its regulation of
restaurants to reduce the risks of acquiring
chronic diseases from food. The first of two
27
new regulations phases out the use of
artificial trans fat . . . . The second new
regulation requires chain restaurants to
provide information on the calorie content of
their foods conspicuously on menus and
menu boards.
(Footnotes omitted). Thus, the adoption of the Portion Cap Rule is in line with the
adoption of prior initiatives under various sections of the Charter, including the
provision regarding the supervision of the food supply, to address diet-related
chronic diseases like type 2 diabetes and cardiovascular disease, and the obesity
epidemic in New York City.
Without merit is petitioners' argument that Charter sections 556(c)(2)
and (c)(9) are limited in scope as "confirmed contextually by § 556(c)'s
surrounding subsections" (Resp. Br., pp. 51-52). Petitioners have cited to no
principles of statutory construction or any language in the other paragraphs of
section 556(c) that would limit the scope of paragraphs (2) and (9) of section
556(c).
Moreover, the Board's grant of authority flows not just from Charter
sections 556(c)(2) and 556(c)(9), but also from Charter section 558(b), which was
cited by this Court in Blanchard and Grossman. The restriction on the use of
artificial trans fats is particularly instructive because after the Board amended the
Health Code, the City Council incorporated the restriction into the Administrative
Code. In its statement of legislative findings and intent, the City Council
28
recognized the Board's legislative authority, stating that the Board of Health had
previously adopted the restriction on the use of artificial trans fat "pursuant to the
authoritv granted to it by § 558 of the New York City Charter" (emphasis added)
(627).7
Citing a newspaper article, petitioners contend that the City Council
incorporated the restriction into the Administrative Code because of concerns over
the Board's authority to adopt the measure (Resp. Br., pp. 38, 49-50). Nothing in
that article, however, even suggests that the Council believed that the Board did
not have the authority to adopt the restriction on the use of artificial trans fat. It
was noted in the article that the sponsor stated that the incorporation of the ban into
the Administrative Code would make it more difficult for a future Board to rescind
the ban. See John Toscano, Vallone's Trans Fat Ban Signed By Mayor, The
Queens Gazette, Apr. 4, 2007, available at http://www.qgazette.com/news/2007-
04-4/features/019.htmI.
Moreover, during the legislative process, no council member
expressed any belief that the Board had exceeded its authority in adopting the
artificial trans fat restriction. The restriction on the use of artificial trans fat is an
example where the Board and the City Council have concurrent jurisdiction over a
7 Unless otherwise noted, numbers in parentheses refer to pages of the Record on Appeal.
29
matter and the two entities worked in tandem. See, Hearings before the City
Council Committee on Health and the full Council.s
Even a City Council Committee on rules explicitedly recognized that
"[t]he Board may legislate on 'all matters and subjects to which the power and
authority of the Department extends.' ... The jurisdiction of the Department is
among the most extensive and varied of all City agencies . . . . In addition to its
primary legislative function in relation to the Code, the Board is charged with
certain administrative responsibilities." See, "Briefing Paper of the Committee on
Rules, Privileges and Elections" dated September 21, 2011, p. 2.9 Petitioners'
silence regarding this document speaks volumes.
In addition to the restriction on the use of artificial trans fat, the
Board, pursuant to its broad delegated authority, has amended the Health Code to:
in 1960, prohibit the use of interior lead paint (Health Code §173.l3); in 1976,
require building owners to put guards in the windows of apartments housing
children (Health Code §131.15); in 1964, require that the public water supply be
fluoridated (now Health Code §141.05); in 1994, create an immunization registry
8http://legistar.council.nyc.govNiew.ashx?M=F&ID=6693 82&GUID=492C647D-FBEE-4B72-
8946-D9EBEC 10023B'
http://legistar.council.nyc.gov/View.ashx?M=F&ID=670024&GUID=799C45CE-F800-43A6-
967E-OABF15BOA9C9;
http://legistar.council.nyc.govNiew.ashx?M=F&ID=670211 &GUID=86FF2241-8CA9-4AAA-
B096-6D7EB7FDA67E
9http://legistar.council.nyc.govNiew.ashx?M=F&ID=1564868&GUID=E40780AC-F98 7-49E8-
BDF4-D46909F60B80
30
(Health Code §11.07); and in 2008, require some food service establishments to
post calorie information (Health Code §81.50).
More recently, the Board has adopted nutrition and physical activity
requirements for group day care facilities in an effort to improve nutrition and
physical activity in these settings. The standards prohibit beverages with added
sweeteners and requires no more than six ounces of 100% juice each day for
children over eight months old, 1% or skim milk for children over two, and that
water must be available and easily accessible throughout the day. See 24 RCNY
Health Code § 47.61.
Petitioners argue that each of the above provisions is different from
the Portion Cap Rule because the Board acted "within specific grants of authority
or the traditional limits of the Board's public health jurisdiction" (Resp. Br., p. 37).
This argument is unconvincing. The Health Code requires that fluoride be added
to water that is otherwise safe for the additional benefit of preventing dental
cavities. The "specific grant of authority" for the fluoridation program is Charter
§ 556(c), which states that the Department shall "supervise and regulate the public
health aspects of water supply." If the Department's authority to supervise the
water supply is broad enough to cover it mandating fluoridation, then Charter
§ 556(c)(2) ("control of communicable and chronic diseases") and Charter
§ 556(c)(9) ("supervise and regulate the food and drug supply") are sufficiently
31
broad enough to cover it regulating how food servIce establishments serve a
product associated with chronic diseases. Even more tellingly, the decision in
Paduano upholding fluoridation, which was affirmed by this Court, relied upon the
broad powers of the Board set forth in Charter § 558(b) and not merely upon
powers relating to water supply, thus reflecting the traditionally expansive judicial
reading given to the Board's scope of authority. 45 Misc. 2d at 720-721.
Citing Sorbonne Apartments Co. v. Bd. Of Health, 88 Misc.2d 970
(Sup. Ct., N.Y. Co. 1976), petitioners claim that the window guard requirement
was enacted pursuant to an Administrative Code provision enabling the Board to
issue orders for the prevention of accidents by which life or health may be
endangered (Resp. Br., p. 39). The Sorbonne court, however, found that the Board
acted within its authority under the Charter to "provide for the 'security of life and
health in the city"'. Id, at 971. The Administrative Code provision cited by
petitioners and the Court, as well as the Charter provision cited by the Court, were
equally broad and even less specific than Charter §556(c)(2) and (c)(9).
Petitioners contend that the restriction on the use of leaded paint was
based on the Board's historical role of banning poison. In 1960, when the Board
restricted the use of lead paint, lead-based paint was not classified as an
"inherently harmful matter". The Board was the first entity in the nation to ban it.
Petitioners also argue, without citing any statutory provision, that the restriction
32
was also an exercise of the Board's power "to abate ...or otherwise Improve ...
any building ... dangerous to life or health." Clearly, the restriction on the use of
lead paint was adopted pursuant to the Board's power under Charter §§ 556 ("to
regulate all matters affecting health") and 558 ("may publish additional provisions
of security and life and health in the city").
Petitioners' attempt to distinguish the regulation of day care centers
fares no better. Like day care centers, food service establishments are a universe
of businesses that the Department has historically regulated. Despite its long
history of oversight over day care establishments, the Board's regulations
concerning nutrition and physical activity were arguably novel. Yet, petitioners
willingly find room for them in the Department's broad authority to protect the
health of the City's children. A regulation about how food service establishments
serve sugary beverages fits just as easily within the Department's authority to
control chronic diseases.
The Charter's broad delegation of authority to the Board is consistent
with the necessity for expertise in the area of public health that is "incapable of
statutory completion." Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979). Flexibility is
particularly important in certain complex fields where the Legislature cannot
foresee all variables. Matter of Citizens for An Orderly Energy Policy v. Cuomo,
78 N.Y.2d 398, 410 (1991). Public health is a complex field for which the
33
Legislature cannot always anticipate developing problems and respond to them in a
timely manner, and, for that reason, the Board was delegated broad authority by
the State Legislature and the City Council to enable the Board to provide
innovative, science-based responses to serious, complex public health problems.
See, Matter of Comptroller v. Mayor of the City of New York, 7 N.Y.3d 256, 266
(2006) ( "It would be an unjust reflection upon the wisdom and intelligence of the
law-making body to assume that they intended to confine the scope of their
legislation to the present, and to exclude all consideration for developments of the
future. If any presumption is to be indulged in, it is that general legislative
enactments are mindful of the growth and increasing needs of society, and they
should be construed to encourage, rather than to embarrass the inventive and
progressIve tendency of the people") (internal quotation marks and citation
omitted).
For all of the above reasons, the Portion Cap Rule was not written on
a "clean slate."
(2)
Unsuccessful City Council Resolutions And State Assembly Bills Did Not
Preclude The Adoption Of The Portion Cap Rule.
Unlike Boreali, where there were 40 bills on the specific subject of the
PHC rule, here there was minimal legislative activity concerning sugary drinks
34
(five unsuccessful State Assembly bills and three unsuccessful City Council
resolutions), none of which involved portion sizes. 10
The lack of agreement by a legislative body or "failed legislative
inaction," as the Appellate Division has termed it, however, is not indicative of
legislative intent as held by a legion of this Court's precedents. See, Rent
Stabilization Association of New York City v. Higgins 83 N.Y.2d 156, 170
(1993), cert. denied, 512 U.S. 1213 (1994) (the Court upheld a regulation
notwithstanding the introduction of 27 bills in the State Legislature relating to
succession rights, rejecting the argument that "the failed bills alone warrant the
conclusion that the agency has exceeded its mandate"); Bourquin v. Cuomo, 85
N.Y.2d 781, 787 (1995) ("that proposed legislation similar to [the] the Executive
Order . .. was not passed, does not indicate legislative disapproval of the
programs contemplated by the [Executive] order"); Matter of New York State
,
Health Facilities Association v. Axelrod, 77 N.Y.2d 340, 348, n.2 (1991) (this
Court, commenting on ten unsuccessful bills dealing with admission of nursing
home patients based on Medicaid status which were introduced in the Legislature,
10 Although some individual members of the City Council signed onto an amicus brief in
support of petitioners in the Appellate Division, the Council has not acted on portion sizes. Even
if the City Council had enacted legislation, that would not have precluded the Board from also
addressing the matter. The "mere fact that the Legislature has enacted specific legislation in a
particular field does not necessarily lead to the conclusion that broader agency regulation in the
same field is foreclosed." Consolidated Edison Co. v. Department of Environmental
Conservation, 71 N.Y.2d 186, 193 (1988).
35
stated "we ascribe no particular significance to the legislative inaction in this
case"); Clark v. Cuomo, 66 N.Y.2d 185 (1985) ("that proposed legislation similar
to Executive Order No. 43 was not passed does not indicate legislative disapproval
of the programs contemplated by the [Executive] order"); Festa v. Leshen, 145
A.D.2d 49 (15t Dep't 1989) ("the Court of Appeals, in Boreali (supra) could not
have intended to invalidate a regulation merely because the Legislature had, at
some point, considered the same subject matter. The court had in mind the type of
extensive and repeated consideration which the Legislature had afforded to the
issue of smoking in areas open to the public. Moreover, the PHC had only acted
after substantial legislative debate on the issue").
Remarkably, petitioners make no attempt to reconcile their arguments
with the above cases cited in appellants' main brief.
Here, sugar-sweetened drinks generally were the subject of minimal
legislative debate and a cap on portion size was never debated by either the City
Councilor the State Legislature. In fact, petitioners have not cited to any public
hearings on the proposals. If the mere introduction of proposed legislation, or non-
binding City Council resolutions, could foreclose agency action, small groups of
legislators, or even a single member, could preclude agency action on a whim.
In Boreali, there was extensive and repeated consideration by the
Legislature of the precise issue that the PHC attempted to regulate - smoking in
36
areas open to the public. The PHC's action was obviously an attempt to get around
a legislative logjam. That is not the case here.
(3)
The Board Did Not Consider Impermissible Factors.
Petitioners argue that the Board impermissibly balanced social,
economic and political considerations in developing the Portion Cap Rule (Resp.
Br., pp. 56-62). Petitioners cite to discussions among Board members about the
economic impact of the proposed Portion Cap Rule in response to concerns raised
during the public comment period. Prohibiting such discussions would require an
agency to act in a vacuum. This prong of the analysis should focus solely on
whether the health impact of the rule was compromised in its development in order
to balance other impermissible considerations. In Boreali, the PHC "built a
regulatory scheme on its own conclusions about the appropriate balance of trade-
offs between health and cost to particular industries in the private sector". 71
N.Y.2d at 12.
Here, the Board did not balance the public health impact against
economic and social concerns. In fact, one of petitioners' complaints is that the
Board adopted the Portion Cap Rule notwithstanding the economic impact on the
beverage industry and small business owners.
37
Petitioners argue that the Board balanced impermissible factors by
deciding to cap portion size at 16 ounces rather than 12 ounces because of the
general availability of 16 ounce drinks (Resp. Br., p. 59). An agency, however,
should not be barred from considerations of feasibility and implementation when
adopting regulations. In any event, the determination to limit the single portion
size to 16 ounces was made after careful consideration of historical portion sizes,
portion sizes in other countries and the sugar and calories contained in the various
sizes (749-753).
Finally, contrary to petitioners' argument, agencies and boards cannot
adopt rules without regard to their enforcement powers, and are entitled to take
into account their administrative capabilities. The Portion Cap Rule applies to all
food service establishments licensed by the Department, but not to businesses, such
as convenience stores and supermarkets, that are regulated by a State agency.
Food retail stores that derive more than half of their revenue from sales of
packaged food are not subject to the Department's full enforcement authority
pursuant to a Memorandum of Understanding ("MOU") between the New York
State Department of Agriculture and Markets and the New York State Department
of Health ("State DOH") (607-615). See, pages 42-46, infra. I I
11 Like the Portion Cap Rule, Health Code Article 47, which sets forth nutrition and physical
activity requirements for group day care facilities, applies only to day care centers regulated by
the Department and not to familylhome centers regulated by the State.
38
It was also proper for the Board to recognize the limits of its authority
regarding alcoholic beverages based on the preclusive effect of the New York State
Alcoholic Beverage Control Law. See, page 47, infra.
In sum, the goal of the Rule to help consumers make healthier
choices, and the resulting health impacts, was not compromised by impermissible
considerations.
(4)
The Board Relied on its Specialized Expertise in Public Health.
The Rule was researched and presented to the Board by Department
staff, including numerous physicians, who have scientific and medical expertise in
this area and who, under the Charter, serve the Board (712-741; 742-760). See
Charter § 553(c) ("the Department Commissioner shall designate employees of the
department "to the service of the board"). The Rule was only adopted after
individual Board members evaluated the scientific and medical studies published
in health journals and considered public comments, including those from the
leading researchers in the fields of nutrition and obesity (1469-1470, 1476-1477,
1477-1479,1472-1473).
Petitioners argue that the Board adopted the Rule based on
conclusions about consumer behavior, and on considerations regarding economic
and business practices which did not involve the exercise of the Board's expertise
39
CRespo Br., p. 64). Petitioners' collection of isolated remarks by Board members,
taken out of context, about business practices and economics should not distract
from the fact that the adoption of the Rule was based on volumes of scientific
studies, which included studies on consumer behavior.
Understanding and addressing consumer behavior is an important
element in protecting public health. It is the basis for such policies as providing
nutrition and calorie information as well as the Board's conclusion that a portion
cap will aid New Yorkers to make conscious choices as to the amount of sugary
drinks they are consuming.
The Board's medical and scientific expertise helped it to understand
the impact of sugary drinks on the obesity epidemic; the link between portion size
and consumption; and the potential efficacy of the proposal. The large
compendium of scientific literature examined, including studies in support of
conflicting arguments, demonstrates that this issue was something that could not
have been successfully undertaken by laypersons.
(5)
In Sum, The Adoption Of The Portion Cap Rule Was A Proper
Exercise Of The Board's Regulatory Authority.
To the extent the four "coalescing factors" found m Boreali are
determinative of the Board's authority to promulgate the Portion Cap Rule, none of
40
them are present in this case. Accordingly, the Appellate Division erred in finding
that the Board exceeded its authority in adopting the Portion Cap Rule.
POINT III
THE PORTION CAP RULE IS NOT
ARBITRARY OR CAPRICIOUS.
Contrary to petitioners' argument (Resp. Br., pp. 66-72), the fact that
the Rule is allegedly "underinclusive" because it does not cover all establishments
and dairy-based, pure juice and alcohol drinks is not a basis to invalidate it.
Government is not required to address all facets of a problem at once and may
address a problem incrementally. See, New York State Health Faciliti s Ass'n v.
Axelrod, 77 N.Y.2d 340, 350 (1991) ("petitioner argues that the regulations are
irrational because they apply to new applicant facilities and do not redress any
discrimination by existing facilities. Merely because respondent has attempted to
address part of a perceived concern, however, provides no basis for invalidating
the regulations"). See also, New York State Restaurant Association v. New York
City Board of Health, 556 F.3d 114, 133, n.22 (2d Cir. 2009) ("we also reject
NYSRA's suggestion that heightened review is appropriate because New York
City has alternative means of achieving its goals or because Regulation 81.50
[calorie count posting requirements] impacts only ten percent of New York City
restaurants") .
41
In any event, as discussed below, the exclusion of certain
establishments and certain types of drinks was rationally based and was not
arbitrary or capricious.
(1)
The Rule's Application To Food Service Establishments Is Rational Because
It Is Consistent With The Department's Enforcement Authority.
The Portion Cap Rule applies to all food service establishments
("FSEs") regulated and permitted by the Department. It does not apply to
convenience stores and supermarkets licensed by the State Department of
Agriculture and Markets pursuant to the MOD between the State Departments of
Health and of Markets and Agriculture (607-615). This is consistent with all of the
requirements in Article 81 of the Health Code, including the restriction on the use
of artificial trans fat, letter grades after inspections by the Department, and the
requirement to post calorie counts on menus.
All localities including the City of New York are bound by the MOD
(609). See, Public Health Law, §§ 206(1)(b); 206(4)(b); 10 N.Y.C.R.R. §14-
1.190(b). Petitioners' argument that the Department is not constrained by the
MOD because it "addresses only a limited set of food supply safety issues" is
without merit (Resp. Br., p. 66). The MOD governs "Jurisdiction over Food
Operations" and makes clear that no establishment in the State of New York is
required to be permitted or inspected by more than one department regarding its
42
food operations (609).. The issue is not whether the City's analysis of this MOD's
legal effect is correct in every detail, but rather whether the MOD's own stated
scope and effect provide a rational basis for the City's application of the Portion
Cap Rule to food service establishments regulated and permitted by the
Department.
Petitioners argue that appellants have not acted consistently with the
MOD and cite random examples from the Health Code in support of their
argument (Resp. Br., pp. 66-68). Petitioners' reliance on these provisions is
misplaced. Health Code § 173.03 prohibits any person from selling, giving away
or leaving in any place a hazardous substance in a container with a food, drug or
cosmetic label. There is no evidence that the Department enforces this provision in
those premises not licensed by it or that the State would not be enforcing its
labeling requirements in establishments that are within markets.
Petitioners cite two tobacco-related regulations which they say are
inconsistent with appellants' position on the MOD because they "expressly pertain
to 'supermarkets. '" Neither, however, regulates the operation of food service,
which is the area regulated by the State Department of Agriculture and Markets
pursuant to the MOD. One regulates the conduct of patrons by prohibiting them
from carrying lighted cigars and cigarettes. The other required tobacco retailers,
including markets that sell cigarettes, to post warning signs. The Department has
43
enforcement powers with respect to tobacco products pursuant to sections 17-709
and 17-717 of the New York City Administrative Code. The State Department of
Agriculture and Markets has no enforcement authority is this area, and thus there is
no conflict with respect to enforcement jurisdiction by a state agency with respect
to tobacco sales.
Health Code § 181.07 (common eating utensils) is contained in
Article 181, which lists general provisions and uses the term commercial premises
in the list of the places to which that Article applies. The definition of
"commercial premises" for that article (see section 181.01(b)) refers to Article 135
of the Health Code, which has been repealed. The other places listed in section
181.07 are businesses that are, or were, regulated by the Health Code. Except for
summarily citing this provision, petitioners have not demonstrated that the
Department would enforce this provision in an establishment subject to the
jurisdiction of the state agency.
Plaintiffs are incorrect in their belief that Section 11.01 of the Health
Code requires persons who work in places where food is sold to report
communicable diseases to the Department. There is no such requirement in Article
11 of the Health Code. In any event, under the MOD, the Department of
Agriculture and Markets is required to report outbreaks to the local health
44
departments and local health departments retain jurisdiction over investigations of
communicable diseases.
The other section cited by petitioners, Health Code § 71.05
(misbranding), simply mirrors state labeling requirements. Thus, either the Health
Department or the State Department of Agriculture and Markets would enforce this
provision depending on the business' sales per the MOD.
Petitioners argue that appellants were required under the MOD to
coordinate with the State Department of Agriculture and Markets to obtain its
agreement to defer to the authority of the Board over establishments under its
jurisdiction (Resp. Br. p. 69). This simply is not true. Dnder the MOD, the
departments will meet to determine whether a particular establishment is being
regulated by the correct department based on its sales receipts. Again, under the
MOD, an establishment can only be under the jurisdiction of one of the two State
agencies. Petitioners would revise the MOD to give the Department jurisdiction
over establishments deriving less than fifty percent of their annual sales from
ready-to-eat foods. Petitioners' suggestion that this could be easily accomplished
ignores the fact that the MOD is between two State agencies and a request for
modification would involve a multitude of parties and issues.
Furthermore, it was not arbitrary to implement the Portion Cap Rule
in relation to entities where there is no dispute as to jurisdiction. See, Diamond v.
45
Cuomo, 70 N.Y.2d 338, 342 (1987), appeal dismissed, 486 U.S. 1028 (1988)
("That the State policy .. .is partially frustrated because the Federal statute preempts
it. ..does not render the policy irrational and the State is free to pursue that policy
to the extent doing so is consistent with Federal law").
Even if there was no issue as to jurisdiction, it would not have been
irrational to implement the Rule on an incremental basis. See, New York State
Health Facilities Ass'n v. Axelrod, 77 N.Y.2d 340, 350 (1991) ("Merely because
respondent has attempted to address part of a perceived concern, however,
provides no basis for invalidating the regulations").
Finally, it was not arbitrary or capricious to distinguish between FSEs
that are regulated and inspected by the Department and grocery stores that are not.
It is rational to cover FSEs that are predominantly selling food for immediate
consumption, and not future storage, because the focus of the Rule is on single
serving consumption of large sugary beverages. 12
(2)
The Definition Of Covered Beverages Was Based On Scientific And Health
Based Evidence And Legal Jurisdiction.
The Rule follows the scientific evidence connecting sugary drinks and
obesity, type 2 diabetes and heart disease. The Rule does not cover pure juices and
12 If groceries were covered by the rule, petitioners would undoubtedly be arguing that their
inclusion was irrational because families should be able to buy large bottles of beverages for
consumption at home.
46
dairy-based drinks for rational reasons based on nutritional considerations and
supported by sound evidence and expertise (1563, ,-r34-35). The exclusion of soy-
based substitutes, but not rice-or almond-based substitutes, is based on the U.S.
Department of Agriculture's definition of dairy substitutes, which is, again, based
on nutritional considerations. http://www.choosemyplate.gov/food-
groups/dairy.html.
Petitioners' argument that the Board could regulate the SIze of
alcoholic beverages overlooks the State Alcohol and Beverage Control Law
("ABC") (Resp. Br., p. 72). The ABC Law regulates control, manufacture, sale
and distribution of alcohol and thus, the Portion Cap Rule, were it to directly
regulate how alcohol is sold, would be preempted. In contrast, the requirement to
post calories which is applicable to alcoholic drinks does not impact the manner in
which the alcohol is sold.
(3)
The Portion Cap Rule's Treatment of Refills is Based
on Behavioral Studies and Health Considerations
Finally, petitioners' argument that the Rule is arbitrary because it
allows for refills, for consumers to purchase more than one drink, and for
consumers to add unlimited amounts of sugar to their drinks, again, fails to account
for a sensible explanation based on well-documented research (Resp. Br., pp. 73-
74). The Rule is designed to make consumption of large amounts of sugary drinks
47
a conscious and informed choice by the consumer. Thus, although a consumer is
free to consume more than 16 ounces by ordering a second drink, getting a refill, or
going to another store, he or she will be making an informed choice to do so, rather
than the choice made for him or her by the default sizes dictated by the beverage
and restaurant industries.
For all the foregoing reasons, the Board did not exceed its statutory
authority and the Portion Cap Rule was supported by a rational basis and was not
arbitrary. Accordingly, the Decision and Order appealed from should be reversed
and the Petition dismissed.
48
CONCLUSION
THE DECISION AND ORDER (ONE
PAPER) APPEALED FROM SHOULD
BE REVERSED, AND THE PETITION
DISMISSED, WITH COSTS.
Respectfully submitted,
ZACHARY W. CARTER,
Corporation Counsel
of the City of New York,
Attorney for the Respondents-
Appellants.
By: 'JztJ JvFA N 0
PAMELA SEIDER DOLGOW,
TREVOR D. LIPPMAN,
MARK MUSCHENHEIM,
SPENCER FISHER,
FAYNG,
of Counsel.
49