In the Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, et al., Respondents,v.The New York City Department of Health and Mental Hygiene, et al., Appellants.BriefN.Y.Jun 4, 2014APL-2013-00291 New York County Clerk’s Index No. 653584/12 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 Article 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 Department of Health and Mental Hygiene, Respondents-Appellants. >> >> Brian L. Bromberg BROMBERG LAW OFFICE, P.C. 26 Broadway, 21st Floor New York, New York 10004 212-248-7906 Anne Pearson Manel Kappagoda Lindsey Zwicker Amy Barsky CHANGELAB SOLUTIONS 2201 Broadway, Suite 502 Oakland, California 94612 510-302-3380 Attorneys for Amici Curiae Date Completed: April 24, 2014 BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS, NATIONAL ASSOCIATION OF LOCAL BOARDS OF HEALTH, AMERICAN PUBLIC HEALTH ASSOCIATION, AND PUBLIC HEALTH ASSOCIATION OF NEW YORK CITY Micah Berman OHIO STATE UNIVERSITY COLLEGE OF PUBLIC HEALTH & MORITZ COLLEGE OF LAW 1841 Neil Avenue Columbus, Ohio 43210 614-688-1438 i CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 500.1(f) of the Rules of Practice for the Court of Appeals of the State of New York, amici curiae state the following: 1. The National Association of County and City Health Officials (NACCHO) is a not-for-profit organization under 26 U.S.C. § 501(c)(3). It has no corporate parents, subsidiaries, or affiliates. 2. National Association of Local Boards of Health (NALBOH) is a not-for- profit organization under 26 U.S.C. § 501(c)(3). It has no corporate parents, subsidiaries, or affiliates. 3. The American Public Health Association (APHA) is a not-for-profit organization under 26 U.S.C. § 501(c)(3). It has no corporate parents, subsidiaries, or affiliates. 4. The Public Health Association of New York City (PHANYC) is a not- for-profit organization under 26 U.S.C. § 501(c)(3). It has no corporate parents, subsidiaries, or affiliates. ii TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iv INTEREST OF AMICI CURIAE ................................................................... xi PRELIMINARY STATEMENT .................................................................... 1 ARGUMENT .................................................................................................. 6 I. THE PORTION SIZE RULE IS AN EXAMPLE OF SOUND, EVIDENCE-BASED PUBLIC HEALTH PRACTICE ....................... 6 A. The Rule Is One Piece Of A Comprehensive And Coordinated City-Wide Effort To Address Obesity, Diabetes And Other Diet-Related Chronic Diseases .................. 7 1. The Board Is One of the Many City Agencies and Branches That Have Acted to Combat the Crisis ............ 7 2. The City’s Efforts Reflect a Model “Health in All Policies” Approach ........................................................ 15 B. The Incremental And Pragmatic Nature Of The Rule Accords With Well-Accepted Norms Of Public Health Practice ........... 16 C. The Rule Reflects Modern Public Health Goals And Methods, Including Social Norm Change And Behavioral Economics ................................................................................ 21 II. THE LOWER COURTS’ INTERPRETATIONS OF BOREALI AND THE ARBITRARY AND CAPRICIOUS STANDARD ERRONEOUSLY RESTRICT THE BOARD FROM IMPLEMENTING INCREMENTAL AND PRACTICAL SOLUTIONS TO PROFOUND PUBLIC HEALTH THREATS ...... 27 iii A. The Appellate Division’s Application of Boreali Would Make It All But Impossible For The Board To Operate .......... 28 1. The First Boreali Factor: The Board May Regulate Chronic Disease, and It Must Consider Factors in Addition to Health in Formulating Rules ...................... 29 2. The Second Boreali Factor: The Board Did Not Write on a Blank Slate in Developing the Rule ....................... 34 3. The Third Boreali Factor: The Board Did Not Act in Contravention of Any Legislative Decision in Promulgating the Rule ................................................... 36 4. The Fourth Boreali Factor: The Board Exercised Its Expertise in Approving the Rule ................................... 37 B. The Portion Size Rule Is Neither Arbitrary Nor Capricious .... 38 1. Incremental Regulation Is Not Only Permissible But Often Necessary ...................................................... 41 2. The Regulatory Distinctions Made by the Rule Are Rational and Not Arbitrary ..................................... 42 CONCLUSION ............................................................................................. 45 iv TABLE OF AUTHORITIES Cases Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ...........................................................................................passim Chiropractic Ass’n of N.Y., Inc. v. Hilleboe, 12 N.Y.2d 109 (1962) ........................................................................................ 36, 41 Consolation Nursing Home, Inc. v. Commissioner of New York State Dept. of Health, 85 N.Y.2d 326 (1995) .............................................................................................. 39 Fougera & Co. v. City of New York, 224 N.Y. 269 (1918) ................................................................................................ 42 Hymowitz v. Eli Lilly & Co., 136 Misc. 2d 482 (1987) .......................................................................................... 43 Matter of General Electric Capital Corporation v. N.Y. State Div. of Tax Appeals, 2 N.Y.3d 249 (2004) ................................................................................................ 40 Matter of Memorial Hosp. v Axelrod, 68 N.Y.2d 958 (1986) .............................................................................................. 39 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y. City Dept. of Health & Mental Hygiene, 970 N.Y.S.2d 200 (2013) ..................................................................................passim New York State Health Facilities Ass’n, Inc. v. Axelrod, 77 N.Y.2d 340 (1991) ................................................................................. 20, 39, 40 New York State Restaurant Ass’n v. New York City Bd. of Health, 556 F.3d 114 (2d Cir. 2009) ..................................................................................... 19 v Nunez v. Giuliani, 91 N.Y.2d 935 (1998) .............................................................................................. 40 Stein v. Rent Guidelines Bd. for City of New York, 514 N.Y.S.2d 222 (1987) ......................................................................................... 41 Stracquadanio v. Department of Health, 285 N.Y. 93 (1941) .................................................................................................. 18 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) ..................................................................................................... 43 Williams v. Baltimore, 289 U.S. 36 (1933) ................................................................................................... 40 Statutes C.P.L.R. § 7803(3) ................................................................................................... 5, 39 N.Y. City Charter § 556 ........................................................................................... 5, 28 Patient Protection and Affordable Care Act, Public Law 111-148 § 4001 ..................................................................................... 16 Rules 24 R.C.N.Y. Health Code § 13.07 ............................................................................... 18 24 R.C.N.Y. Health Code § 47.61 ......................................................................... 12, 20 24 R.C.N.Y. Health Code § 81.08 ............................................................................... 20 24 R.C.N.Y. Health Code § 81.50(a)(1) ...................................................................... 19 vi 24 R.C.N.Y. Health Code § 81.50(b) ........................................................................... 19 Denver Exec. Order 123 (Mar. 11, 2013) .................................................................... 16 Local Law of New York City 9 (2008) .......................................................................... 9 Seattle Ordinance 2010-0509 (2010) ........................................................................... 16 Other Authorities Abadie, Alberto & Sebastien Gay, The Impact of Presumed Consent Legislation on Cadaveric Organ Donation: A Cross-Country Study, 25 J. Health Econ. 599 (2006) .................................................................................. 23 Adler, Nancy, et al., Inst. of Med., Building the Science for a Population Health Movement (2013) ..................................................................................................... 21 Am. Pub. Health Ass’n, Health Impact Assessment: A Tool to Benefit Health in All Policies (2013) ...................................................... 15 Ariely, Dan, Predictably Irrational: The Hidden Forces that Shape Our Decisions (2009) ....................................................................................................................... 24 Gielin, Andrea Carlson & David Sleet, Application of Behavior-Change Theories and Methods to Injury Prevention, 25 Epidemiol. Rev. 65 (2003) .................................................................................. 25 Cabinet Office & Inst. for Government (UK), Mindspace: Influencing Government Through Public Policy (2010) ..................... 34 Centers for Disease Control & Prev., The New (Ab)Normal (2012) ........................... 22 vii City University of New York Campaign Against Diabetes & Public Health Ass’n of New York City, Reversing Obesity in New York City: An Action Plan for Reducing the Promotion and Accessibility of Unhealthy Food (2012) ................... 10 Davis, Kenneth Culp, 5 Administrative Law § 29:3 [2d ed.] ...................................... 39 DellaVigna, Stefano & Ulrike Malmendier, Paying Not to Go to the Gym, 96 Am. Econ. Rev. 694 (2006) ................................................................................ 23 Dunn, Lillian L., et al., An Observational Evaluation of Move-To-Improve, a Classroom-Based Physical Activity Program, New York City Schools, 2010, 9 Prev. Chronic Disease 120072 (2012) .................................................................. 12 Flood, Julie E., et al., The Effect of Increased Beverage Portion Size on Energy Intake at a Meal, 106 J. Am. Dietetic Ass’n 1984 (2006) .............................................................. 22, 41 Glickman, Dan, et al., Inst. of Medicine, Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation (2012) ............................................. 22 Gonzalez, Richard, et al., U.S. Department of Transportation, The Social Psychology of Seatbelt Use (2010).............................................................................................. 25 Gostin, Lawrence O., Bloomberg’s Health Legacy: Urban Innovator or Meddling Nanny?, 43 Hastings Center Report 19 (2013) ........................................................................ 8 Gutman, Marjorie, Robert Wood Johnson Foundation, Social Norms and Attitudes About Smoking, 1991-2010, Robert Wood Johnson Retrospective Series (2011) ................................................. 33 Inst. of Medicine, Living Well With Chronic Illness: A Call for Public Health Action (2012) ........................................................................................................... 16 Kahnemann, Daniel, Thinking Fast and Slow (2011) ................................................. 24 viii Kumanyika, Shiriki, for the African American Collaborative Obesity Research Network (AACORN), Impact of Sugar-Sweetened Beverage Consumption on Black Americans’ Health (Jan. 2011) ...................................................................... 45 Lin, Biing-Hwan & Rosanna Mentzer Morrison, USDA Economic Research Service, Food and Nutrient Intake Data: Taking a Look at the Nutritional Quality of Foods Eaten at Home and Away From Home (June 2012) ..................................... 44 Madrian, Brigitte C. & Dennis F. Shea, The Power of Suggestion: Inertia in 401(k) Participation and Savings Behavior, 116 Q.J. ECON. 1149 (2001) ..................................................................................... 23 Nat’l Ass’n of County and City Health Officials, Health in All Policies (2012) ........ 16 Nielsen, Samara Joy & Barry M. Popkin, Patterns and Trends in Food Portion Sizes, 1977-1998, 289 JAMA 450 (2003) ................................................................ 22 N.Y. City Dept. Health & Mental Hygiene, Farmers’ Markets (2014) ........................ 9 N.Y. City Dep'ts of City Planning, Health and Mental Hygiene, City Planning, Office of Management and Budget, and Design and Construction, Active Design Guidelines: Promoting Physical Activity and Health in Design (2010) ..... 13 N.Y. City Dep'ts of City Planning, Health and Mental Hygiene, City Planning, Office of Management and Budget, and Design and Construction, Active Design Supplement: Shaping the Sidewalk Experience (2013) .................... 13 N.Y. City, Growing Healthy Children: A Guide to Enhance Nutrition and Physical Activity in New York City Group Child Care Centers (2011) ................................. 12 N.Y. City Obesity Task Force Plan to Prevent and Control Obesity, Reversing the Epidemic (2012) ................................................................................................passim ix N.Y. State Dep't of Health, New York State Strategic Plan for Overweight and Obesity Prevention (2008) ..................................................................................... 7W Ogden, Cynthia L., et al., U.S. Dep’t of Health and Human Services, Centers for Disease Control and Prevention, Data Brief No. 71, Consumption of Sugar Drinks in the United States, 2005-2008 (2011) .................. 45 Perkins, H. Wesley, Social Norms and the Prevention of Alcohol Misuse in Collegiate Contexts, 14 J. Stud. Alcohol (Supp.) 164 (2002) ................................................................... 25 Public Health Inst., Health in All Policies: A Guide for State and Local Government (2013) ....................................................................................................................... 16 Rolls, Barbara J., et al., The Effect of Large Portion Sizes on Energy Intake Is Sustained For 11 Days, 15 Obesity 1535 (2007)............................................................................................ 41 Saul, Michael Howard, City Scores in Obesity Fight, Wall St. J. (Dec. 16, 2011) ......................................................................................... 8 S.F. Dept. of Pub. Health, Health Impact Assessment (2014)..................................... 16 Surowiecki, James, Downsizing Supersize, The New Yorker (Aug. 13, 2012) .......... 22 Thaler, Richard H. & Cass R. Sunstein, Designing Better Choices, L.A. Times (Apr. 2, 2008) ....................................................................................... 24 Thaler, Richard H. & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness, 83-86 (2008) ......................................................... 24 U.S. Dept. Health & Hum. Svcs., Healthy People 2020 (2010) .................................. 27 x 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) ........................................................................... 32 White House Task Force on Childhood Obesity, Solving the Problem of Childhood Obesity Within One Generation (2010) ................................................................... 26 World Health Org., Violence Prevention: Changing Cultural and Social Norms that Support Violence (2009) .......................................................................................... 25 Young, Lisa R. and Nestle, Marion, The Contribution of Expanding Portion Sizes to the U.S. Obesity Epidemic, 92 Am. J. Pub. Health 246 (2002) .......................................................................... 44 Young, Lisa R. & Marion Nestle, Portion Sizes and Obesity: Responses of Fast-Food Companies, 28 J. Pub. Health Policy 238 (2007) ........................................................................ 22 Young, Lisa R. & Marion Nestle, Reducing Portion Sizes to Prevent Obesity, 43 Am. J. Prev. Med. 565 (2012) ............................................................................. 41 xi INTEREST OF AMICI CURIAE Amici curiae are leading local public health organizations, nationally and in New York City. Amici submit this brief in support of respondents-appellants New York City Department of Health and Mental Hygiene et al. and in defense of Section 81.53 to underscore for the Court that obesity and type 2 diabetes, along with other diet-related chronic diseases, represent an imminent danger to public health; that the portion size rule is a measured step, among many others taken by the City, to address that danger; and that the Board of Health has acted here in conformity with and in furtherance of the standards of modern public health practice. The National Association of County and City Health Officials (NACCHO) is the voice of the 2,800 local health departments across the country. These city, county, metropolitan and tribal departments work every day to protect and promote health and well-being for all people in their communities. As the primary government agency responsible for keeping people in the community healthy and safe, local health departments lead efforts to ensure that healthy food and beverage options are available. Reducing the consumption of sugar-sweetened beverages xii through policy change efforts like those undertaken by New York City Department of Health supports the availability of healthier options. A portion size cap on sugar-sweetened beverages is a sensible and evidence-based public health approach to addressing the epidemic of obesity, which leads to chronic diseases like heart disease and diabetes. Chronic diseases have taken an enormous toll on quality of life and are one of the leading causes for the rise of health care costs. The National Association of Local Boards of Health (NALBOH) informs, guides, and is the national voice for local boards of health. Uniquely positioned to deliver technical expertise in governance, leadership and board development, NALBOH is committed to strengthen good governance where public health begins—at the local level. For over 20 years, NALBOH has been engaged in establishing this significant voice for local boards of health on matters of national public health policy. The American Public Health Association (APHA) champions the health of all people and all communities. APHA strengthens the profession of public health, shares the latest research and information, promotes best practices and advocates for public health issues and policies grounded in research. Reversing the nation’s obesity epidemic is a priority for the association. New York City’s portion cap xiii size on sugar-sweetened beverages is one step among many that the city has taken to combat the adverse health and economic outcomes that have been linked to consumption of sugar-sweetened beverages. The Public Health Association of New York City (PHANYC) is a diverse organization of health and other professionals who are committed to public health, including the overall health of the population. Since 1936, PHANYC has been working for improved health for the city’s people. Throughout, PHANYC has been a catalyst informing consumers and providers of health care about public health issues; advocating for improved public health measures and a more responsive and equitable health care system; and influencing public health policy. In New York City, obesity is responsible for as many as 5,800 deaths per year and an estimated $4 billion in direct medical costs. PHANYC believes that the Portion Cap Rule is a sensible strategy to address the obesity epidemic by helping to make healthy choices easier for consumers. 1 PRELIMINARY STATEMENT The petitioners in this case tell a troubling story. According to the beverage companies, the New York City Board of Health (for some reason) rubber-stamped a policy pushed by an elitist mayor, bypassing the legislative process to impose (for that same unknown reason) a draconian and random rule that (according to this story) serves no health purpose but restricts low-income residents from making choices about what they consume. The courts below heard this tale, and they ruled accordingly. But there is a problem with the story. Like many compelling tales, it is a work of fiction. The actual history of the Portion Size Rule (“the Rule”) is quite different. It is an account of a city, faced with an urgent public health crisis, that mustered its varied resources to protect its residents. With rates of obesity and type 2 diabetes surging, undermining the health of New York City’s residents so dramatically that for the first time ever children’s life expectancies were projected to be shorter than their parents’, the City decided to act. It could not stand by and watch its most vulnerable residents grow sicker and sicker. It knew it needed to be creative and comprehensive in making it easier for City residents to live healthier lives. 2 So every City department and every agency mobilized to do what was in its power to fight the crisis. The Department of Education made sure that school lunches and snacks were healthy. It installed water jets in schools to provide access to non-caloric drinks. And the Department of Health and Mental Hygiene (“DOHMH” or “the Department”) joined in to enhance physical education offerings in the schools. The Health and Hospitals Corporation ensured that City- owned hospitals serve healthy food in their cafeterias and to their patients. The DOHMH made it easier for food stamp recipients to use farmers’ markets. The City Planning Department changed its rules to encourage more farmers’ markets and healthy food carts in the City. The Mayor issued an executive order requiring that healthful food and beverages be provided in vending machines in all City agencies. The DOHMH adopted a regulation requiring that chain restaurants post calories on menu boards. The Building Department set out new guidelines that made it easier to take the stairs rather than the elevator. The Parks & Recreation Department installed exercise facilities in parks throughout the City and developed programs to facilitate physical activity, including City-owned bicycle rentals and mobile vans that provide athletic equipment. Five City departments—Design and Construction, DOHMH, Transportation, City Planning, and Office of Management and Budget— 3 together developed Active Design Guidelines, providing architects and urban designers with a manual of strategies for creating healthier buildings, streets, and urban spaces to guide the City in its future initiatives. In furthering these collective efforts, the New York City Board of Health (“the Board”) adopted the Rule at issue here. Because evidence had mounted showing that drinking soda and other sugar-sweetened beverages was one of the reasons that people were getting sick, the Board issued a regulation limiting single- serving sugary drink sizes in restaurants and other food service establishments under its jurisdiction. It did not ban sugary drinks, or even prevent anyone from consuming as much of them as he or she might like. Instead, it followed well- established research demonstrating that individuals are likely to consume the entire portion they are served regardless of whether they indeed need or want the entire amount, and that therefore changing the default portion size of meals and beverages helps individuals consume a more healthy quantity. The Rule still permitted refills for those who did want a greater quantity, so it promoted both individual autonomy and health. Even after the City implemented its broad and coordinated program of initiatives, the health threats posed by obesity were still serious—and further action remained essential. But the entire City government had worked, and continued to 4 work, to stem the crisis. And, against all odds, obesity rates in the City started to abate. By pulling together, the City had managed for the first time to stem the tide and begin moving toward a healthier future for its children. By looking out for all of its people, including the most vulnerable, the City had met what may be the greatest public health challenge of our time. That is the story that has not yet been told in this case. And it is a history with crucial relevance to the issues before this Court. * * * The 2,800 health departments and tens of thousands of local public health officials represented by amici curiae file this brief to inform the Court about the methods and practices of public health work in the 21st century. Amici are deeply concerned about the narrow and outdated view of modern public health practice reflected in the lower courts’ opinions. The Appellate Division’s reasoning, if adopted, would threaten the ability of the Board (and all other boards of health in the state of New York) to implement incremental, science-based public health measures necessary for protecting the City’s health. And the Supreme Court’s analysis of the arbitrary and capricious standard, if adopted, would threaten the ability of the Board (and other local boards) to function at all. 5 As demonstrated in the sections that follow, the Rule reflects evidence-based best practices for public health entities, falls comfortably within the Board’s authority, and is not arbitrary or capricious. As Part I explains, the broad-based, collaborative, incremental and pragmatic approach undertaken by New York City to counter the obesity crisis is neither an aberration nor a departure from accepted practice; to the contrary, in the view of public health experts, it stands as a model for the rest of the nation. The Rule represents but one piece of a comprehensive effort. When the public health basis for the Rule is properly understood, it is clear that the measure is neither beyond the Board’s authority to “control . . . communicable and chronic diseases,” N.Y. City Charter § 556(c)(2), nor arbitrary and capricious. As demonstrated in Part II, the lower courts’ narrow construction of the Board’s authority is both contrary to law and dangerous to the well-being of New Yorkers. The lower courts misread Boreali v. Axelrod, 71 N.Y.2d 1 (1987), which permits public health agencies to take account of multiple factors in implementing incremental policies to advance significant government interests. If left to stand, the Appellate Division’s decision would leave wide swaths of the Board’s well-established, uncontroversial, and critically important public health powers vulnerable to legal challenge. Similarly, the Rule is by no means “arbitrary 6 and capricious or an abuse of discretion.” C.P.L.R. § 7803(3). New York law accords administrative agencies broad authority to develop policy within their area of expertise, and in this case the Rule is rational and well supported by scientific evidence. ARGUMENT I. THE PORTION SIZE RULE IS AN EXAMPLE OF SOUND, EVIDENCE-BASED PUBLIC HEALTH PRACTICE. Amici represent local boards of health and health departments that span the entire nation. Within the public health community, the consensus is clear: New York City’s efforts to address obesity—including the Rule—stand out as a model of comprehensive, evidence-based best practices. As discussed below, the Rule embodies expert public health practice. First, the Rule is integrated into a coordinated, city-wide campaign to reduce obesity rates, type 2 diabetes, 1 and other chronic diseases. Second, it is a pragmatic, incremental regulation that addresses a major cause of obesity while preserving consumer choice. Third, it is informed by scientific evidence from behavioral economics and other fields. An understanding of these properties of the Rule reveals why it falls within the Board’s authority to 1 Type 2 diabetes, formerly called adult-onset diabetes, affects 95 percent of diabetics. See National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK), National Institutes of Health (NIH), available at http://diabetes.niddk.nih.gov/dm /pubs/riskfortype2/ (accessed Apr. 21, 2014) 7 regulate to protect public health and why the Rule cannot be deemed arbitrary or capricious. A. The Rule Is One Piece Of A Comprehensive And Coordinated City-Wide Effort To Address Obesity, Diabetes And Other Diet- Related Chronic Diseases. Viewed in context, the Board’s effort to reduce sugar-sweetened beverage intake represents but one piece in a broad, diverse and coordinated effort by the City to take on perhaps its greatest public health challenge. The Rule is not, therefore, an isolated endeavor. To the contrary, the Rule is but a single part of a much larger, interlocking program aimed at a broad problem with multifarious solutions. See New York City Obesity Task Force Plan to Prevent and Control Obesity, Reversing the Epidemic (2012). 2 1. The Board Is One of the Many City Agencies and Branches That Have Acted to Combat the Crisis. The City’s efforts to slow and then reverse the advance of obesity and associated diseases have encompassed not just the Board and DOHMH, but also multiple agencies from every sector of City government. See Lawrence O. Gostin, Bloomberg’s Health Legacy: Urban Innovator or Meddling Nanny?, 43 Hastings 2 Available at http://www.nyc.gov/html/om/pdf/2012/otf_report.pdf and attached as Appendix A. The still larger undertaking includes efforts at the state and federal levels as well. See, e.g., New York State Department of Health, New York State Strategic Plan for Overweight and Obesity Prevention (2008), http://www.health.ny.gov/prevention/obesity/strategic_plan/docs/strategic _plan.pdf; Centers for Disease Control and Prevention, National Diabetes Prevention Plan (2014), http://www.cdc.gov /diabetes/prevention/index.htm (accessed Apr. 21, 2014). 8 Center Report 19 (2013). 3 It is through these concerted efforts that the City has been able to make progress. For example, at the end of 2011, the City announced that childhood obesity rates among public school (K-8) children in the City had declined by 5.5%, bucking national trends. See Michael Howard Saul, City Scores in Obesity Fight, Wall St. J. (Dec. 16, 2011) (citing report by Centers for Disease Control & Prevention). 4 There remains, however, a great deal more to do. At 20.7%, the rate of childhood obesity in the City remains alarming high. Id. Fortunately, the City continues to have in place a spectrum of programs, including the Rule, directed at reducing obesity, type 2 diabetes, and other diet-related chronic disease. DOHMH has played a prominent role in this effort. The Department has implemented a wide array of measures addressing issues ranging from physical activity to workplace health to healthful diets. With respect to healthy eating, the Department has worked to increase access to healthy options at hospitals, high schools, childcare centers, restaurants, and other institutions. See Reversing the Epidemic. 5 3 Available at http://www.thehastingscenter.org/Publications/HCR/Detail.aspx?id=6536 (accessed Apr. 21, 2014). 4 Available at http://online.wsj.com/news/articles/SB100014240529702038934045771 00932057090026 (accessed Apr. 21, 2014). 5 Available at http://www.nyc.gov/html/om/pdf/2012/otf_report.pdf and Appendix A. 9 For example, DOHMH instituted the Health Bucks program, which provides coupons to SNAP (formerly “food stamps”) recipients to enhance their purchasing power at the City’s farmers’ markets. Id at 6. It also created the Stellar Farmers’ Market Initiative, which provides free nutrition workshops and cooking demonstrations at farmers’ markets across the city. These promote the benefits of a diet rich in fruits and vegetables and improve the ability of low-income New Yorkers to prepare healthy meals using fresh produce. See N.Y.C. Dept. Health & Mental Hygiene, Farmers’ Markets (2014). 6 In other areas, the City Council and the Department created the Green Carts program, providing special permits to mobile vending carts that sell fresh fruits and vegetables in low-income neighborhoods with low rates of fresh produce consumption. Local Law of New York City 9 (2008); Reversing the Epidemic at 6. And DOHMH developed Shop Healthy NYC, which targets low-income underserved areas of NYC with intensive technical support for stores to change their inventory, placement, and promotion of healthy foods. Reversing the Epidemic at 16. Finally, the Department led the way in banning trans fats from City restaurants. Id. In other words, DOHMH has been involved in a multifarious array of activities designed to prevent obesity, type 2 diabetes, and other diet-related chronic diseases. 6 Available at http://www.nyc.gov/html/doh/html/living/cdp-farmersmarkets.shtml#mkt (accessed Apr. 21, 2014). 10 Reflecting nationwide best practices, the Department has also collaborated with other City agencies in the obesity-prevention effort. For example, a joint study by the Department of City Planning, the New York City Economic Development Corporation, and DOHMH revealed that many neighborhoods across the city were underserved by grocery stores. In response, the City implemented the Food Retail Expansion to Support Health (FRESH) program, which provides zoning and financial incentives to grocery store operators and developers to promote the establishment and retention of grocery stores in underserved communities. Reversing the Epidemic at 15. As another example, DOHMH anchors the Food Policy Taskforce convened by the Office of the Food Policy Coordinator to organize the efforts of City agencies to improve access to healthy food. See City University of New York Campaign Against Diabetes & Public Health Ass’n of New York City, Reversing Obesity in New York City: An Action Plan for Reducing the Promotion and Accessibility of Unhealthy Food (2012), at 5. 7 Healthy eating initiatives are only a fraction of DOHMH’s activities aimed at reducing diet-related chronic disease. On the DOHMH’s section of the NYC.gov website, there are—just under the “Eating Healthy” tab—sub-tabs for 7 Available at http://www.phanyc.org/wp-content/uploads/2012/11/2008unhealthyfoodreport.pdf (accessed Apr. 21, 2014). 11 Sugary Drinks, Shop Healthy NYC!, Green Carts, NYC Agency Food Standards, Healthy Child Care Settings, Healthy Food Donation, Healthy High Schools, Healthy Hospital Food Initiative, Healthy Workplaces, NYC Farmers’ Markets, and Trans Fat in New York City.8 The other tabs listed on the website, each with its own array of sub-tabs specifying obesity-prevention policies and initiatives, include “Diabetes” and “Physical Activity,” along with an entirely separate section on “Healthy Environment.”9 The City’s efforts to counter obesity also extend well beyond DOHMH’s domain. The Department of Education has installed 350 water jets—large dispensers of cooled tap water—to promote drinking water in schools as an alternative to sugar-sweetened beverages. To encourage students to consume more fruits and vegetables, the Department of Education has also installed more than 800 salad bars. See Reversing the Epidemic at 10. It has also designed “Move-to- Improve,” a classroom-based curriculum designed to increase physical activity among children by incorporating short, structured fitness breaks into the school day. See Lillian L. Dunn et al., An Observational Evaluation of Move-To-Improve, a Classroom-Based Physical Activity Program, New York City Schools, 2010, 9 8 See http://www.nyc.gov/html/doh/html/living/eating-well.shtml (hover over “eating healthy” on the left menu) (accessed Apr. 21, 2014). 9 See id. 12 Prev. Chronic Disease 120072 (2012). 10 Consistent with these efforts, the City also amended the Health Code sections governing child care centers to establish minimum daily requirements for physical activity, restrict television viewing time, and limit the availability of high-calorie beverages. See R.C.N.Y. Health Code § 47.61; NYC Health, Growing Healthy Children: A Guide to Enhance Nutrition and Physical Activity in New York City Group Child Care Centers (2011). 11 The Department of Parks and Recreation has also joined the initiative. The agency developed the program BeFitNYC, helping users find fitness activities such as lunchtime walking groups, after-work runs, yoga meet-ups, and zumba classes. See NYC Dept. of Parks & Rec., http://www.nycgovparks.org/befitnyc (accessed Apr. 21, 2014). The Department of Parks and Recreation also runs Shape Up NYC, which offers nearly 200 free fitness classes every week across the five boroughs, targeting neighborhoods with high rates of obesity.12 This citywide campaign involves every aspect of City government. The New York City Food Standards, promulgated by an executive order from the mayor’s office, require that the 270 million meals and snacks (including vending machine items) served annually by public agencies—schools, after-school 10 Available at http://www.cdc.gov/pcd/issues/2012/12_0072.htm (accessed Apr. 21, 2014). 11 Available at http://www.nyc.gov/html/doh/downloads/pdf/cdp/growing-healthy-children- policy-guide.pdf (accessed Apr. 21, 2014). 12 See Dept. of Parks & Rec., http://www.nycgovparks.org/programs/recreation/shape-up-nyc (accessed Apr. 21, 2014). 13 programs, public hospitals, and senior centers—meet certain nutritional requirements.13 Active Design Guidelines created by five City agencies working in tandem—the Departments of Design and Construction, DOHMH, Transportation, City Planning, and Office of Management and Budget—guide municipal construction and renovation. Also influential in the private sector, the Active Design Guidelines provide architects and urban designers with a manual of strategies for creating healthier buildings, streets, and urban spaces, including by encouraging the use of stairs, limiting the use of escalators, providing bicycle parking, and designing children’s play areas. See NYC Departments of City Planning, Health and Mental Hygiene, City Planning, Office of Management and Budget, and Design and Construction, Active Design Guidelines: Promoting Physical Activity and Health in Design (2010); NYC Departments of City Planning, Health and Mental Hygiene, City Planning, Office of Management and Budget, and Design and Construction, Active Design Supplement: Shaping the Sidewalk Experience (2013). 14 Seen in the context of this panoply of obesity-prevention measures, all designed to promote healthier living and healthier eating, the Rule is far from an 13 See NYC Dept. of Health & Hygiene, http://www.nyc.gov/html/doh/html/living/ agency-food-standards.shtml (accessed Apr. 21, 2014). 14 Available at http://www.nyc.gov/html/ddc/html/design/active_design.shtml (accessed Apr. 21, 2014) 14 outlier. To the contrary: it fits effectively into an interlocking set of measures that the City has undertaken to prevent obesity and related chronic diseases. In particular, the Rule dovetails with other measures targeting the over-consumption of sugary drinks and other high-calorie, low-nutrient foods and beverages. For example, DOHMH’s Sugary Drink Educational Campaign educates New Yorkers about the serious health consequences of sugar-sweetened beverage consumption through print, Internet, and television advertisements, as well as outreach to community- and faith-based organizations. Reversing the Epidemic at 14. As noted, City-sponsored policies have removed sugary drinks from vending machines in municipal buildings, from childcare and other educational settings, and from hospital cafeterias. The Board’s Menu Labeling regulation requires chain restaurants to post calorie information on menu boards, including for sugary drinks. See Reversing the Epidemic at 6. The Rule is, in other words, only one star in a much larger constellation of initiatives aimed at stemming the obesity crisis. If it were the only measure that the City had implemented (or even the only one involving sugary drinks), there might be legitimate concerns about the City’s choice of this particular means of addressing the crisis. But the City has chosen to focus on sugar-beverage portion sizes only after implementing diverse and numerous other measures in an overall 15 campaign against obesity and diet-related chronic disease. In the context of measures addressing physical activity, the built environment, and nutrition— including the consumption of sugary drinks— a regulation addressing sugary drink portion sizes should be seen as a logical next step in a comprehensive and path- breaking effort to protect the public health. 2. The City’s Efforts Reflect a Model “Health in All Policies” Approach. New York City’s obesity prevention efforts reflect a “Health in All Policies” approach, which the American Public Health Association refers to as the “gold standard” for public health practice. Am. Pub. Health Ass’n, Health Impact Assessment: A Tool to Benefit Health in All Policies (2013).15 A Health in All Policies approach recognizes that in the 21st century, government efforts to protect the public’s health cannot be limited to boards and departments of health. Instead, a spectrum of public agencies and resources must be enlisted to address widespread and complex public health problems, like chronic disease, that have multiple causes and multiple solutions. 16 See Nat’l Ass’n of County and City 15 See http://www.apha.org/NR/rdonlyres/171AF5CD-070B-4F7C-A0CD0CA3A3FB93DC /0/HIABenefitHlth.pdfj (accessed Apr. 21, 2014). 16 “Health in All Policies [HiAP] is a collaborative approach to improving the health of all people by incorporating health considerations into decision-making across sectors and policy areas. . . . A Health in All Policies approach identifies the ways in which decisions in multiple sectors affect health, and how better health can support the goals of these multiple sectors. It engages diverse governmental partners and stakeholders to work together to promote health, 16 Health Officials, Health in All Policies (2012);17 Public Health Inst., Health in All Policies: A Guide for State and Local Government (2013).18 This 360-degree approach has been adopted in communities around the nation, including Denver, see Exec. Order 123 (Mar. 11, 2013), 19 San Francisco, see S.F. Dept. of Pub. Health, Health Impact Assessment (2014), 20 and Seattle/King County, see Ordinance 2010-0509 (2010), but New York City is often singled out as the exemplar. See, e.g., Public Health Inst., Health in All Policies at 32. 21 B. The Incremental And Pragmatic Nature Of The Rule Accords With Well-Accepted Norms Of Public Health Practice. In adopting the Rule, the Board acted in precisely the manner that 21st- century boards of health act (and should act) when confronting a chronic-disease equity, and sustainability, and simultaneously advance other goals such as promoting job creation and economic stability, transportation access and mobility, a strong agricultural system, and educational attainment.” Am. Pub. Health Ass’n, An Introduction to Health in All Policies: A Guide for State and Local Governments, http://www.apha.org/NR/rdonlyres/7D35E8A9-9429- 4072-993B-0211214E1CDF/0/HiAPGuide_4pager_FINAL.pdf (accessed Apr. 21, 2014); see also Inst. of Medicine, Living Well With Chronic Illness: A Call for Public Health Action (2012) (recommending the implementation of a HiAP approach in order to address the social determinants of health more directly, coordinate efforts across sectors, and use public resources more effectively); Patient Protection and Affordable Care Act, Public Law 111-148 § 4001 (2010 (creating the National Prevention Council and National Prevention Strategy). 17 See http://www.naccho.org/topics/environmental/HiAP/upload/HiAP-FAQs-Finals-12.pdf (accessed April 21, 2014). 18 See http://www.phi.org/resources/?resource=hiapguide (accessed April 14, 2014). 19 Available at https://www.denvergov.org/Portals/728/documents/NDCC/ NWSS RFQ Executive Order 123.pdf (accessed Apr. 21, 2014). 20 Available at http://www.sfphes.org/resources/hia-tools (accessed Apr. 21, 2014). 21 Available at http://www.phi.org/uploads/files/Health_in_All_Policies-A_Guide_for_State _and_Local_Governments.pdf (accessed Apr. 21, 2014). 17 crisis: it noted the gravity of the problem, took account of the measures already in place, considered potential new approaches, and crafted a pragmatic measure that was well-supported by scientific evidence. That the Board did not choose a broader policy that would have been beyond its authority, or a further-reaching rule that would have been entirely impractical to implement, can hardly be held a violation of law. To the contrary, it is precisely this sort of incremental and practical regulation that has always characterized the work of boards of health. An incremental approach is not only legal but very often necessary for addressing complex health problems with multiple causes. For many persistent health problems, like obesity and diabetes, it may take decades before the epidemiological evidence points to a comprehensive solution. And there is seldom a quick-fix or all-in-one solution. Moreover, boards of health may wish to adopt incremental approaches in order to preserve consumer choice or balance multiple interests implicated by public health measures, including personal preferences, religious interests, or privacy concerns. A given regulation, then, may permissibly take steps to address a problem, even when it could have gone further. Thus, it is legally irrelevant that the Rule alone is unable to solve the problem entirely or that that the Rule allows for additional consumer choice where others would have suggested more inflexible measures. These are not grounds for 18 invalidating a regulation. See Stracquadanio v. Department of Health, 285 N.Y. 93, 97 (1941) (in an Article 78 action, if a challenged regulation has “a reasonable relation to a bona fide purpose by the Board of Health . . . as an incident to the protection and promotion of public health, then the promulgation of the regulation was a valid exercise of the Board’s authority”). Along with the panoply of other obesity-related measures adopted by the City, the Board has a valid, scientifically supported basis for believing that the Rule will contribute to the solution. Indeed, there are many examples of the Board’s choosing an incremental approach, in accordance with its expertise and in light of practical considerations, when more aggressive action was an option. For instance, in the information reporting context, the Board has required clinical laboratories that report electronically to DOHMH, but not those that report manually, to convey the results of hemoglobin A1C tests (which are used to diagnose diabetes and to monitor management of the disease). N.Y.C. Health Code tit. 24, § 13.07 (2005). It is simply too impractical and too much of a burden on manually reporting agencies to convey this information. That does not mean that the Board should forgo receiving important information from institutions that report electronically; instead, the Board has the discretion to regulate incrementally, taking into account practical realities. 19 Similarly, the Board’s menu labeling rule requires all chain restaurants with fifteen or more outlets to disclose calorie counts on their menus and menu boards. It applies “to menu items that are served in portions the size and content of which are standardized,” 24 R.C.N.Y. Health Code § 81.50(b), even though many non- standardized menu items, such as customized pizzas, have a very high calorie content that is likely to be misjudged by consumers in the absence of labeling. The rule is also limited to chain restaurants, even though non-chain restaurants also serve foods that are high in calories and low in nutritional value. Id. § 81.50(a)(1). Under the calorie-labeling rule, not all restaurants on the same block are treated the same. And not all foods at the same restaurant are treated the same. But that does not detract from the fact that the rule is a reasonable step toward informing consumers of the caloric content of their meals and thereby reducing obesity. N.Y. State Restaurant Ass’n v. N.Y. City Bd. of Health, 556 F.3d 114, 136 (2d Cir. 2009) (upholding calorie disclosure rule as “clearly reasonably related to its goal of reducing obesity”). The Board need not regulate with a heavy (or rigid) hand in order to regulate at all; it may prioritize and move incrementally to protect public health. N.Y. 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 . . . provides no basis for invalidating the regulations” (emphasis added)). 20 Additionally, since no agency or board can act outside of the scope of its jurisdiction, the incremental and practical steps it chooses to implement are necessarily bound by the confines of its authority. For instance, the Board has banned trans fats in restaurant food—but the trans fat ban, like the Rule, applies to restaurants and other food service establishments and does not extend to grocery or convenience stores, even though those establishments also sell food containing trans fats. 24 R.C.N.Y. Health Code § 81.08. 22 As another example, the Board’s nutrition guidelines for group day care facilities, see Health Code § 47.61, would benefit all children in organized day care, but they do not (because they cannot) cover family day care establishments, which are regulated by the State. Here, the Board has acted to regulate the food service establishments that are subject to its jurisdiction under Article 81 of the Health Code. The Ordinance does not purport to cover bodegas and grocery stores, for the simple and entirely justifiable reason that these establishments do not fall within the jurisdiction of the Board of Health. Similarly, because regulation of alcoholic beverages takes place at the state level and is outside of the Board of Health’s authority, the Board did not seek to regulate alcoholic beverages that might contribute to obesity. 22 Available at http://rules.cityofnewyork.us/content/section-8108-foods-containing-artificial- trans-fat (accessed Apr. 21, 2014). 21 If the Board’s regulations were invalidated simply because they did not extend to areas beyond its purview, it would rarely be able to regulate at all. C. The Rule Reflects Modern Public Health Goals And Methods, Including Social Norm Change And Behavioral Economics. The Rule is also grounded in scientific evidence and public health expertise. The public health goals of behavioral change and social norm change, which are reflected in the Rule, are both mainstays of modern public health practice. As public health science has evolved, boards of health have developed a more sophisticated understanding of how health-related decisions are made and the myriad environmental, cultural, social, and ecological factors that influence such decisions. See, e.g., Nancy Adler et al., Inst. of Med., Building the Science for a Population Health Movement (2013) (experts “view health as the product of multiple determinants at the biologic, genetic, behavioral, social, and environmental levels and their interactions among individuals, communities, time, and place”). 23 This understanding of context informs the City’s Rule, an understanding supported by the findings of social psychology and behavioral economics. 23 Available at http://www.iom.edu/~/media/Files/Perspectives-Files/2013/Discussion- Papers/BPH-BuildingTheScience.pdf (accessed Apr. 21, 2014). 22 Specifically, the Rule is based on well-established research confirming that most people stick with the default option—i.e., the option presented to them—most of the time, and that therefore changing the default can be an effective and relatively non-intrusive intervention. The Board recognized that the extraordinary increase in portion sizes of sugary drinks in recent years—gradual enough to be invisible to consumers, but striking to researchers who have looked at portion sizes over time, see Ctrs for Disease Control & Prev., The New (Ab)Normal (2012) (infographic) 24 —had created an expectation that drink sizes were supposed to be enormous. 25 And so it proposed to reset the default size, applying the lessons of behavioral economics, as public health experts across the country have recommended. See Dan Glickman et al., Inst. of Medicine, Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation (National Academies Press 2012); James Surowiecki, Downsizing Supersize, The New Yorker (Aug. 13, 2012) (explaining how “default bias” impacts consumption). The Board’s review of the Rule’s potential efficacy included consideration of extensive economic, behavioral, and psychological evidence that consumers 24 Available at http://makinghealtheasier.org/newabnormal (accessed Apr. 21, 2014). 25 See Lisa R. Young & Marion Nestle, Portion Sizes and Obesity: Responses of Fast-Food Companies, 28 J. Pub. Health Policy 238 (2007); Rule at n.31, available at http://rules.cityofnewyork.us/content/establishing-maximum-size-sugary-drinks-0 (citing Julie E. Flood et al., The Effect of Increased Beverage Portion Size on Energy Intake at a Meal, 106 J. Am. Dietetic Ass’n 1984 (2006)); Samara Joy Nielsen & Barry M. Popkin, Patterns and Trends in Food Portion Sizes, 1977-1998, 289 JAMA 450 (2003). 23 overwhelmingly gravitate towards the default option, 26 and that larger portions lead to increased consumption and calorie intake. See Dept. of Health Mem. to Board of Health (Sept. 6, 2012), Rec. on Appeal at 1418–41. The Board found that: How much we consume is hugely influenced by the portion in front of us…. Consumers respond to what the “default” choice is, or the option that is the path of least resistance…. We know that convenience drives many food purchases, particularly fast food purchases. If it becomes harder to carry two or more cups, people will be less likely to do so. Id. at 1423 (quoting Brian Elbel, PhD, MPH, Asst. Prof. of Medicine and Health Policy, N.Y.U. School of Medicine). Though many individuals instinctively object to the notion that environmental factors heavily influence their decisions, the findings upon which the Board relied have been confirmed by researchers over and over again. See Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness, 83-86 (2008) (summarizing the evidence regarding default options).27 26 See Rule at nn. 30-34, available at http://rules.cityofnewyork.us/content/establishing- maximum-size-sugary-drinks-0 (citing sources on the rise of supersize drinks and the impact of default size on consumption); see generally Alberto Abadie & Sebastien Gay, The Impact of Presumed Consent Legislation on Cadaveric Organ Donation: A Cross-Country Study, 25 J. Health Econ. 599 (2006); Stefano DellaVigna & Ulrike Malmendier, Paying Not to Go to the Gym, 96 Amer. Econ. Rev. 694 (2006); Brigitte C. Madrian & Dennis F. Shea, The Power of Suggestion: Inertia in 401(k) Participation and Savings Behavior, 116 Q. J. Econ. 1149 (2001)). 27 See also Richard H. Thaler & Cass R. Sunstein, Designing Better Choices, L.A. Times (Apr. 2, 2008) (“[T]here is no such thing as a ‘neutral’ design. Cognitive psychology and behavioral economics have shown that small and apparently insignificant contextual details can have a major effect on people's behavior.”); see generally Daniel Kahnemann, Thinking Fast and Slow (2011); Dan Ariely, Predictably Irrational: The Hidden Forces that Shape Our Decisions (2009). 24 Some experts in behavioral economics, including Professor Cass Sunstein, former director of the U.S. Office of Information and Regulatory Affairs, have argued that the government should seek to reset defaults in order to promote healthier behavior while still allowing individuals to “opt out” of the healthy choice. See, e.g., id. at 83-86. That is exactly what the Rule does. While preserving choice and autonomy, the Rule furthers public health goals by requiring consumers to consciously think about their consumption before getting a refill or buying another sugary drink. It is neither arbitrary nor beyond the Board’s authority to take such considerations into account. The Appellate Division’s statements to the contrary, which would implicitly require the Board to adopt the most drastic intervention possible without consideration of the interests of personal autonomy, see N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y. City Dept. of Health & Mental Hygiene, 970 N.Y.S.2d 200, 209 (N.Y. App. Div. 2013), do not reflect either the law or current public health practice. The Appellate Division decried changing the default as looking “beyond health concerns” to “try to change consumer norms.” Id. But changing social norms and expectations is precisely how public health officials promote health. For instance, several of the City programs mentioned above seek to create a norm of regular exercise by fostering workout groups and facilitating physical activity. 25 Others aim to change the norm of government office and school vending machines from dispensers of foods with no nutritional value to opportunities for healthy, energy-boosting snacks. Indeed, social norm change has been a key objective of public health campaigns involving alcohol use, 28 violence prevention, 29 seat belt use, 30 injury prevention, 31 and smoking reduction, 32 among many others. The idea of “changing the norm”—of altering the expectation of how things should be—lies at the heart of this dramatically effective modern-day public health strategy. 33 In fact, every notable expert panel offering responses to the obesity crisis has recognized the importance of social and environmental conditions that impact health and has called for implementing (among other interventions) policy measures that prompt social norm change. See, e.g., White House Task Force on Childhood Obesity, Solving the Problem of Childhood Obesity Within One 28 See H. Wesley Perkins, Social Norms and the Prevention of Alcohol Misuse in Collegiate Contexts, 14 J. Stud. Alcohol (Supp.) 164 (2002), available at http://www.collegedrinking prevention.gov/media/journal/164-perkins2.pdf (accessed Apr. 21, 2014). 29 See World Health Org., Violence Prevention: Changing Cultural and Social Norms that Support Violence (2009), available at http://www.who.int/violence_injury_prevention /violence/norms.pdf (accessed Apr. 21, 2014). 30 See Richard Gonzalez et al., U.S. Department of Transportation, The Social Psychology of Seatbelt Use (2010), available at http://deepblue.lib.umich.edu/bitstream/handle /2027.42/86095/102761.pdf?sequence=1 (accessed Apr. 21, 2014). 31 See Andrea Carlson Gielin & David Sleet, Application of Behavior-Change Theories and Methods to Injury Prevention, 25 Epidemiol. Rev. 65 (2003), available at http://epirev.oxford journals.org/content/25/1/65.full (accessed Apr. 21, 2014). 32 See Xueying Zhang et al., The Impact of Social Norm Change Strategies on Smokers’ Quitting Behaviours, 19 Tobacco Control i51 (2010), available at http://tobaccocontrol.bmj.com/ content/19/Suppl_1/i51.full (accessed Apr. 21, 2014). 33 Perkins, Social Norms, supra. 26 Generation, at 67 (2010) (“Much of the existing research suggests that coordinated, multi-component programs and policies are necessary to effectively change social norms, environments, and behaviors.”); Solving the Weight of the Nation at 89 (calling for an “ecological approach to identify leverage points for developing effective intervention strategies to . . . specifically address individual factors, behavioral settings, . . . and social norms and values that may constrain or reinforce regular physical activity and healthful eating as the accepted and encouraged standard”). Healthy People 2020, the ten-year action plan for the nation’s health coordinated by U.S. Department of Health and Human Services, along with other federal agencies, expert advisors, and external stakeholders, identifies “creat[ing] social and physical environments that promote good health for all” as one of its four overarching goals. U.S. Dept. Health & Hum. Svcs., Healthy People 2020 (2010). 34 The initiative specifically identifies “social determinants of health,” including “[s]ocial norms,” as key to promoting health over the coming years. Id. 35 The Rule, following this expert guidance, simply resets the default size of sugary drinks, fostering healthier choices and creating healthier social norms while still allowing consumers the freedom to consume as much beverage as they choose. This approach reflects an evidence-based, behavioral health model for public 34 Available at http://www.healthypeople.gov/2020/about/default.aspx (accessed Apr. 21, 2014). 35 See http://healthypeople.gov/2020/topicsobjectives2020/overview.aspx?topicid=39#two (accessed Apr. 21, 2014). 27 health that preserves individual choice while helping to protect the City from grave illness. II. THE LOWER COURTS’ INTERPRETATIONS OF BOREALI AND THE ARBITRARY AND CAPRICIOUS STANDARD ERRONEOUSLY RESTRICT THE BOARD FROM IMPLEMENTING INCREMENTAL AND PRACTICAL SOLUTIONS TO PROFOUND PUBLIC HEALTH THREATS. The Appellate Division erred in concluding that the Rule falls outside the Board’s authority, and the Supreme Court erred in concluding that the Rule was arbitrary and capricious. As described above, the Rule reflects an incremental, science-based approach to addressing the overconsumption of sugary drinks that fits within a larger framework of municipal efforts to combat obesity. It is a model for 21st-century public health practice. If such a measured approach to fighting the most urgent public health threat to the City is beyond the Board’s (or indeed the City’s) authority, then what effective measures can the Board take? The Appellate Division’s answer to that rhetorical question – confining the Board’s authority to regulating “inherently dangerous matters,” 970 N.Y.S.2d at 209 – has no grounding either in law or in common sense. The Board’s explicit authority extends to the “control of communicable and chronic diseases,” as well as oversight of the “food and drug supply of the city,” City Charter §§ 556(c)(2) & (9), which certainly includes products and practices that can harm public health 28 even if they are not inherently dangerous in their smallest quantities. Nor does the Boreali decision restrict the Board’s authority to implement sound public health solutions. Further, the Supreme Court’s conclusion that the Rule is arbitrary and capricious does not provide an independent basis for affirming the Appellate Division’s decision. The Appellate Division did not reach this ground, and for good reason. When public health experts nationwide are explaining—with scientific studies and years of expertise—how the Rule is an integral part of a comprehensive strategy that is actually working to decrease obesity, it would be surprising indeed for a court to find that Rule arbitrary and capricious. Certainly neither the fact that the Board followed federal precedent in deciding which sugary drinks to regulate, nor the fact that its regulations are confined to those entities under its purview, can be the basis for deeming the Rule irrational. To the contrary: the Rule is a well-considered and measured response to an urgent need. A. The Appellate Division’s Application Of Boreali Would Make It All But Impossible For The Board To Operate. The Appellate Division’s reading of Boreali to limit the Board’s authority is fundamentally inconsistent with the way that public health agencies tackle 21st- century public health problems. Indeed, if Boreali actually required the result that the Appellate Division reached—which it does not—then amici would be calling 29 on this Court to reconsider the Boreali decision itself. But the Appellate Division’s interpretation of Boreali is simply erroneous—inconsistent not only with sound public health practice, but also with the text and the reasoning of the Boreali decision. Indeed, the Appellate Division erred as to each of the four Boreali factors. 1. The First Boreali Factor: The Board May Regulate Chronic Disease, and It Must Consider Factors in Addition to Health in Formulating Rules. This Court was concerned in Boreali that the state Public Health Council had created exemptions to smoke-free laws based purely on economic considerations, picking economic losers and winners rather than developing a practical, health-based strategy to implement the smoking restrictions. 71 N.Y.2d at 12. But the Appellate Division overread this factor, somehow construing it to mean (1) that the Board can only regulate “inherently dangerous matters,” N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y. City Dep’t of Health & Mental Hygiene, 970 N.Y.S.2d at 209, and (2) only take into account “health concerns,” id., without any balancing of other considerations, like practical implementation, personal liberty, or even the limits of its own authority. Neither assumption is accurate. 30 First, and perhaps most troubling, the Appellate Division’s statement that the Board’s authority is limited to “inherently dangerous” products is without legal foundation and completely inimical to well-established public health practice. Public health agencies are able to address issues of alcohol abuse and warn about alcohol use by pregnant women. Such issues are not taken off the table simply because alcohol is not hazardous in moderate quantities and hence is not “inherently dangerous.” The same is true of allergens like peanuts or shellfish, which are of course harmless to the great majority of people. Does Boreali really prevent a public health agency from addressing contaminants in water simply because below a certain level those contaminants are harmless? Or from regulating industrial noise levels because noise itself, at lower levels, does not present a hazard? Of course it does not, and neither does it prevent the Board from regulating sugary drinks. If this “inherently dangerous” standard were in fact the law, it would cripple the work of public health entities and render legally suspect nearly every section of the Health Code. Second, the Appellate Division incorrectly analogized the exemptions in Boreali based on pure economic considerations to the regulatory distinctions made in the Rule at issue here. The court suggested that because the Board acknowledged concerns that were not based solely on “health,” it acted outside of 31 its authority. But the Board is not only justified in considering “non-health factors,” 970 N.Y.S.2d at 209; it is required to consider them. If public health— rather than practicality or even liberty—were the sole factor that a board of health could consider, then the only recourse open to the Board would have been a complete ban on sugary drinks (and Boreali would have mandated a complete ban on tobacco, which it obviously did not). Sugary drinks provide no health benefit at all, and they contribute to significant negative health outcomes. See, e.g., 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 (2007). 36 Yet to require such an all-or-nothing approach is fundamentally inconsistent with public health practice (and good governance, more generally). Boards of health are not mandated—by Boreali or any other source of law—to quarantine every person who comes down with the flu or to immediately shutter any restaurant that violates the Health Code, even though such actions would no doubt further “public health” (to the exclusion of all other considerations). Regulation— any type of regulation—always entails trade-offs and line-drawing, as well as consideration of factors such as the scope of the regulatory entity’s authority, availability of enforcement resources, potential interference with individual and 36 See http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1829363/pdf/0970667.pdf (accessed Apr. 21, 2014). 32 corporate rights, and economic realities. No one would want regulatory authorities to pretend otherwise. If the Board here had elevated economic concerns above all others, as in Boreali, the cases might then be analogous. But here, any exceptions to the Rule were based on practicality of enforcement (enforcement with restaurant inspection), the limits of the Board’s power (it has no power over groceries and alcohol), and—of course—health (milk products have nutritional value). The Appellate Division’s overbroad interpretation of Boreali’s first factor is further troubling from a public health perspective because it purports to substitute the court’s own judgment about appropriate public health measures for those of public health experts. For instance, the Appellate Division’s statement that to “try to change consumer norms” is to “look beyond health concerns” is deeply misinformed. 970 N.Y.S.2d at 209. The changing of social norms is precisely the goal of much of public health practice, including—to name but two obvious examples—the campaigns to reduce smoking and to increase the use of seat belts. 37 37 See Marjorie Gutman, Robert Wood Johnson Foundation, Social Norms and Attitudes About Smoking, 1991-2010, Robert Wood Johnson Retrospective Series at 2 (2011) (noting the “sea change that occurred in tobacco control and smoking behavior” and observing that “seat belts were not especially popular when they were first mandated by the U.S. Department of Transportation in 1984”), available at http://www.rwjf.org/content/dam/web- assets/2011/04/social-norms-and-attitudes-about-smoking (accessed Apr. 21, 2014). 33 Likewise, the Appellate Division’s decrying of the Board’s reliance on “the behavioral economics concept that consumers are pushed into better behavior when certain choices are made less convenient,” 970 N.Y.S.2d at 209, is wholly at odds with current public health principles. As noted above, behavioral economics and consumer psychology play increasingly regular roles in the formulation of modern public health policy. The Appellate Division’s statement that consumers should simply be “offer[ed] information,” 970 N.Y.S.2d at 211, suggests an attempt to substitute its view of proper public health policy for the expert opinion of the Board. In fact, decades of research suggest that there is no such thing as a “neutral” presentation of information and that default conditions powerfully influence choices. Cabinet Office & Inst. for Government (UK), Mindspace: Influencing Government Through Public Policy (2010). 38 The Board’s rule was constructed with this knowledge in mind, and Boreali manifestly does not prohibit consideration of social psychology or behavioral economics. Instead, Boreali requires that a court examine whether an agency has acted without legislative guidance in developing its own view of public policy. Boreali, 71 N.Y.2d at 12- 13. Here, it is plainly the public policy of the entire City of New York, in all its 38 Available at http://www.instituteforgovernment.org.uk/sites/default/files/publications/ MINDSPACE.pdf (accessed Apr. 21, 2014). 34 branches and departments, to pursue responses to the crisis of obesity and diet- related disease. See Part I.A.1., supra. In promulgating the Rule, the Board acted solidly within that mandate. 2. The Second Boreali Factor: The Board Did Not Write on a Blank Slate in Developing the Rule. The Rule comports equally easily with the second Boreali factor. The Appellate Division found that the Rule could not constitute an example of “interstitial” rulemaking because regulating “excessive soda consumption” does not fill a gap in an existing regulatory scheme but instead writes on a “clean slate.” 970 N.Y.S.2d at 210. Indeed, the Appellate Division went so far to state that because “soda consumption cannot be classified as a health hazard per se,” the Board’s rulemaking could not have been “the kind of interstitial rule making intended by the legislature.” Id. at 211. That reading ignores the particular charge given the Board of Health in the City Charter – to control communicable and chronic diseases. City Charter §§ 556(c)(2) & (9). The “interstices” of that broad delegation of authority include determining how to address particular chronic diseases like obesity and type 2 diabetes. The Appellate Division also took no account of the City’s broad and varied efforts to combat obesity. As set forth in Part I, the Rule is in fact part of a complex web of obesity- and diabetes-prevention measures adopted over time by 35 the City Council and by a wide array of City departments. Moreover, many of the City’s (and state and federal governments’) extant policies have placed limits specifically on the consumption of soda—in childcare settings, in vending machines on City property, in schools. See note 5, supra. To say that the Board was writing on a blank slate simply does not accord with the facts. In terms of public health practice, to suggest that the City Council must make a specific delegation of authority with respect to any product or public health problem before the Board of the Health may act is not only to ignore the unique delegation of authority that exists in the City Charter but also to go to the opposite extreme in setting forth a dangerously narrow construction of the Board’s authority. Public health laws—or, in the unique case of New York City, the City Charter—are intentionally written in broad form so that public health entities such as the Board have the flexibility to respond to new public health threats or advances in scientific understanding without having to return to the legislature for authority for each specific action. This flexibility is a central feature of public health law. See, e.g., Chiropractic Ass’n of N.Y., Inc. v. Hilleboe, 12 N.Y.2d 109, 120 (1962) (“Sanitary Code in general presents a situation where flexibility and the adaptation of the legislative policy to infinitely variable conditions constitute the essence of the program”). 36 3. The Third Boreali Factor: The Board Did Not Act in Contravention of Any Legislative Decision in Promulgating the Rule. With respect to the third Boreali factor, no legislative body in this case has ever considered, much less rejected, anything like the Rule that the Board decided to adopt. The City Council has never examined limiting sugary drink portion sizes. And even if it had, Boreali requires more than a legislator’s having introduced a bill that the body did not ultimately enact—otherwise a small minority of legislators could forever preclude an agency from promulgating a rule simply by introducing a bill and allowing it to languish. Instead, Boreali involved (and requires) a situation in which legislature had “repeatedly tried—and failed—to reach agreement” on the specific policy at issue. 71 N.Y.2d at 13 (emphasis added). Equally difficult to explain is the Appellate Division’s focus on the internal activities of the New York State legislature as a limit on what the City’s board of health can do. 970 N.Y.S.2d at 212. Allowing state-level in action to preclude municipal-level regulation raises questions of sovereignty and authority beyond the scope of the Boreali factors. Accordingly, the third Boreali factor favors the Rule. 37 4. The Fourth Boreali Factor: The Board Exercised Its Expertise in Approving the Rule. The fourth Boreali factor, which focuses on the level of special or technical expertise involved, also militates in favor of upholding the Rule. This factor does not require, as the Appellate Division apparently believed, that every rule promulgated by the Board be so complex or so abstruse that only an expert scientist could have developed it. See 970 N.Y.S.2d at 212. The fact that the general public is aware that obesity is a serious problem does not—indeed, cannot—preclude the Board from regulating to prevent and control it. This argument for unnecessary complexity could not be the law. The fourth Boreali factor serves as a way of determining whether an agency is operating outside the limits of its own expertise. Given the number of programs that the Board and DOHMH have implemented to address diabetes and obesity, and those specifically addressing sugary drinks, it would strain credulity to assert that the Board did not bring its expertise to bear in promulgating the Rule. Simply because it did not make changes to the DOHMH’s proposed Rule does not demonstrate the contrary. Knowing when something is workable and effective is just as important as knowing when it is unworkable and ineffective. Approval does not connote lack of expertise, just as an appellate court’s approval of a lower court does not connote that it has failed to exercise its expertise and judgment in 38 affirming. Properly analyzed, therefore, the fourth Boreali factor, like the other three, weighs in favor of a judgment upholding the Rule. B. The Portion Size Rule is Neither Arbitrary nor Capricious. Even though the Rule reflects the wisdom of modern public health practice and is well-supported by behavioral health research, the beverage industry petitioners assert, and the trial court concluded, 39 that the Rule violates Article 78, which prohibits agency action that is “arbitrary and capricious or an abuse of discretion.” C.P.L.R. § 7803(3). It does not. To hold the expert judgment of modern public health practitioners “arbitrary and capricious” would require this Court to employ a profound misreading of the standard under which agency rulemaking actions are reviewed and of the respective roles of administrative bodies and of reviewing courts. As this Court has established, the Board may address a problem incrementally, New York State Health Facilities Ass’n, Inc. v. Axelrod, 77 N.Y.2d 340, 349-50 (1991), and it need not have more than a rational basis for its chosen action. Id. at 350; Consolation Nursing Home, Inc. v. Commissioner of New York State Dept. of Health, 85 N.Y.2d 326, 331 (1995). The Rule plainly satisfies that minimal standard. 39 As noted, the Appellate Division did not reach this issue. 39 “An administrative agency’s exercise of its rule-making powers is accorded a high degree of judicial deference, especially when”—as here —“the agency acts in the area of its particular expertise.” Consolation Nursing Home, 85 N.Y.2d at 331 (citing Matter of Memorial Hosp. v Axelrod, 68 NY2d 958, 960 (1986) & Kenneth Culp Davis, 5 Administrative Law § 29:3, at 343 [2d ed.]). The party challenging the regulation bears “the heavy burden of showing that the regulation is unreasonable and unsupported by any evidence.” Consolation Nursing Home, 85 N.Y.2d at 331-32 (emphasis added); accord Nunez v. Giuliani, 91 N.Y.2d 935, 938 (1998); Matter of General Electric Capital Corporation v. N.Y. State Div. of Tax Appeals, 2 N.Y.3d 249, 254 (2004); New York State Health Facilities Ass’n, 77 N.Y.2d at 349-50. In the field of public health, the courts’ inquiry is a limited one. “The police power is exceedingly broad, and the courts will not substitute their judgment of a public health problem for that of eminently qualified physicians in the field of public health.” Grossman v. Baumgartner, 17 N.Y.2d 345, 350 (1966). In short, the role of a court in reviewing an agency regulation, particularly a public health measure, is limited. “The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense.” Grossman, 17 N.Y.2d at 350 (1966) (quoting Williams v. Baltimore, 289 U.S. 36, 42 (1933)). 40 Section 81.53 easily passes muster under Article 78’s deferential standard of review. Given the urgency of the obesity crisis in New York City, the Board surely had a more-than-valid purpose for enacting the measure. Further, it had considerable empirical evidence that changing the default portion size would reduce consumption of sugary drinks. See Exhs. H and K to Respondents’ Verified Answer and Aff. of Dr. Thomas Farley, Record on Appeal at 1418, 1538, 1544; Flood, Effect of Increased Beverage Portion Size; Barbara J. Rolls et al., The Effect of Large Portion Sizes on Energy Intake Is Sustained For 11 Days, 15 Obesity 1535 (2007); Lisa R. Young & Marion Nestle, Reducing Portion Sizes to Prevent Obesity, 43 Am. J. Prev. Med. 565 (2012). Petitioners bear the burden to show that the Rule is “unsupported by any evidence.” Consolation Nursing Home, 85 N.Y.2d at 332 (emphasis added). This they have not done, and cannot do. Further, the Board was also free to rely on its own experience and expertise. Stein v. Rent Guidelines Bd. for City of New York, 514 N.Y.S.2d 222, 228 (1987) (“When an agency, such as the Board, is engaged in making a quasi-legislative determination, it is not confined to factual data alone but also may apply broader judgmental considerations based upon [its] expertise”); see also Consolation Nursing Home, 85 N.Y.2d at 332 (“Although documented studies often provide support for an agency’s rule making, such studies are not the sine qua non of a 41 rational determination”). Moreover, any disagreement about the evidence justifying the Rule or its efficacy should be resolved not by a court but by the Board. Chiropractic Ass’n v. Hilleboe, 12 N.Y.2d at 114 (in the public health context, “[i]t is not for the courts to determine which scientific view is correct in ruling upon whether the police power has been properly exercised”). Rather than attack the evidence—which they cannot do—Petitioners attempt to undermine the rule by: (1) calling it underinclusive, and (2) questioning the Board’s (necessary) line-drawing. These attacks are unavailing in the context of rational basis review. 1. Incremental Regulation Is Not Only Permissible But Often Necessary. Obesity and related chronic diseases are complex problems for which there is not one simple solution. The Board has full leeway, under Article 78’s deferential standard of review, to attack a problem incrementally. See N.Y. State Health Facilities Ass’n, 77 N.Y.2d at 350 (“Merely because respondent has attempted to address part of a perceived concern, however, provides no basis for invalidating the regulations”); Fougera & Co. v. City of New York, 224 N.Y. 269, 278 (1918) (“It is not important that the ordinance fails to compel disclosure to all the world. Laws are not invalid because they fall short of the maximum of 42 attainable efficiency.”). A contrary “all-or-nothing” rule would make it impossible for boards of health to function. In sum, there is no basis for Petitioners’ argument that the Rule is arbitrary because it does not ban refills or restrict all sugary food and drink. See Pet. Br. at 64-65. The line the Board has drawn is a reflection of its reasoned judgment of the best method to address the issue at this time, a judgment which is owed considerable deference. Moreover, as detailed in Part I, the Rule is but one piece of a multi-faceted effort by the Board and the City as a whole to address the current diet-related health crisis. 2. The Regulatory Distinctions Made by the Rule are Rational and Not Arbitrary. Even when acting incrementally, an agency must act reasonably. For example, in determining which beverages to include in the Rule, the Board needed to have a rational basis for including some but excluding others. Indeed, “[w]henever the legislature draws such a line some must be included, some excluded.” But “[a]s long as the line drawn is reasonable,” it will be upheld. Hymowitz v. Eli Lilly & Co., 136 Misc. 2d 482, 489 (1987) (citing Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974)). In this case, the lines drawn by the Board were eminently reasonable. Petitioners contend there is no rational basis for applying the Rule to restaurants 43 but not convenience stores, Pet. Br. at 65, but the Board determined that the Rule would be best enforced through the City’s regular restaurant inspection process, and that process does not include convenience stores or grocery stores. See City’s Op. Br. at 10. Additionally, the remarkable increase in recent years in both the number of meals eaten outside the home and the portion sizes of those meals—especially the explosive growth in the size of soft drink portions—forms a separate, rational basis for the Rule’s focus on restaurants and similar food service establishments. See Biing-Hwan Lin & Rosanna Mentzer Morrison, USDA Economic Research Service, Food and Nutrient Intake Data: Taking a Look at the Nutritional Quality of Foods Eaten at Home and Away From Home (June 2012); 40 Lisa R. Young & Marion Nestle, The Contribution of Expanding Portion Sizes to the U.S. Obesity Epidemic, 92 Am. J. Pub. Health 246 (2002). The rule focuses on establishments in which sugary drinks are likely to be consumed in the context of a meal, where the combined caloric content of the meal and oversized sugary drinks are likely to far exceed healthy amounts. The product category distinctions that the Rule employs not only rest on rational scientific bases but also reflect nearly identical distinctions drawn by the 40 Available at http://www.ers.usda.gov/amber-waves/2012-june/data-feature-food-and-nutrient- intake-data.aspx (accessed Apr. 21, 2014). 44 federal government. The National Center for Health Statistics at the Centers for Disease Control and Prevention, for example, defines “sugar drinks” as “fruit drinks, sodas, energy drinks, sports drinks, and sweetened bottled waters, consistent with definitions reported by the National Cancer Institute. Sugar drinks do not include diet drinks, 100% fruit juice, … and flavored milks.” See Cynthia L. Ogden et al., U.S. Dep’t of Health and Human Services, Centers for Disease Control and Prevention, Data Brief No. 71, Consumption of Sugar Drinks in the United States, 2005-2008, (2011) at 5 (emphasis added); 41 see also African American Collaborative Obesity Research Network (AACORN), Impact of Sugar- Sweetened Beverage Consumption on Black Americans’ Health (Jan. 2011) 42 (drawing on U.S. Department of Agriculture data defining “sugar-sweetened beverages” as “soft drinks, fruit juice drinks, fruit punch, fruit flavored drinks, energy drinks, and sports drinks that contain caloric sweeteners,” while excluding “water, 100% fruit juice, milk, milk-based beverages, soy-based beverages” as well as alcohol and drinks using non-caloric sweeteners). And of course, these distinctions make sense. Milk has other important nutritional value, as does 100% fruit juice. 41 Available at http://www.cdc.gov/nchs/data/databriefs/db71.pdf (accessed Apr. 21, 2014). 42 Available at http://www.aacorn.org/uploads/files/AACORNSSBBrief2011.pdf (accessed Apr. 21, 2014). 45 In sum, it is within the Board’s discretion to make reasonable distinctions, whether between products (sugary drinks vs. other food products) or within a product category (100% fruit juice vs. juice with added sugar)—and whether based on health considerations, a desire to move incrementally, limitations on regulatory authority, or other factors. All that the law requires is that such distinctions not be arbitrary. The Rule easily satisfies that standard. CONCLUSION The obesity and diabetes crises facing the City and the nation demand that those charged with safeguarding the public’s health take action. The Board, in adopting Section 81.53, has acted in furtherance of its duty to the people of New York City, on the basis of solid evidence, in accordance with best practices, and in a rational manner that is well within the limits of its authority. For the reasons set forth above, amici respectfully request that the decision of the Appellate Division be reversed. Dated: April 14, 2014 Respectfully submitted, _________________________ Brian L. Bromberg Bromberg Law Office, P.C. 26 Broadway, 21st Floor New York, NY 10004 (212) 248-7906 firstname.lastname@example.org 46 Anne Pearson Manel Kappagoda Lindsey Zwicker Amy Barsky CHANGELAB SOLUTIONS 2201 Broadway, Suite 502 Oakland, CA 94612 (510) 302-3380 email@example.com firstname.lastname@example.org Micah Berman OHIO STATE UNIVERSITY COLLEGE OF PUBLIC HEALTH & MORITZ COLLEGE OF LAW 1841 Neil Avenue Columbus, Ohio 43210 (614) 688-1438 email@example.com Attorneys for Amici Curiae Appendix A Reversing the Epidemic: The New York City Obesity Task Force Plan to Prevent and Control Obesity May 31, 2012 2 Introduction In December 2011, Mayor Bloomberg announced a significant victory in the battle against obesity: after years of aggressive efforts to improve nutrition and expand physical activity opportunities for all New Yorkers, New York City experienced a small but statistically significant drop in rates of childhood obesity. Bucking national trends, rates of obesity for NYC kindergartners through eighth graders decreased 5.5 percent from 2006 to 2011, with the sharpest declines – 10 percent – seen among children ages 5 to 6 years old. Mayor Bloomberg makes announcement about New York City child obesity rates with Deputy Mayor Gibbs, Health Commissioner Farley and Schools Chancellor Walcott December 15, 2011 (Photo Credit: Kristen Artz) The data on obesity rates remained bleak for adults, however, and although the decline in rates for children was better news, there are still 40 percent who are overweight or obese, a rate higher than the national average. With evidence that targeted local efforts could have an impact on obesity, Mayor Bloomberg charged Deputy Mayor of Health & Human Services Linda Gibbs and Deputy Mayor of Operations Cas Holloway with significantly strengthening the City’s anti- obesity efforts by convening a multi-agency Obesity Task Force that would recommend innovative, aggressive solutions to address the obesity challenge in New York City. The Obesity Task Force was convened in January 2012 and conducted its work over the following several months. Commissioners from eleven City agencies and representatives from the Mayor’s Office participated: Linda Gibbs, Deputy Mayor for Health and Human Services, co-chair Caswell Holloway, Deputy Mayor for Operations, co-chair Alan Aviles, President, Health and Hospitals Corporation Adrian Benepe, Commissioner, Department of Parks and Recreation David Bragdon, Director, Office of Long Term Planning and Sustainability Amanda Burden, Commissioner, Department of City Planning David Burney, FAIA, Commissioner, Department of Design and Construction Robert Doar, Commissioner, Human Resources Administration 3 Dr. Thomas Farley, Commissioner, Department of Health and Mental Hygiene Kim Kessler, Food Policy Coordinator Robert LiMandri, Commissioner, Department of Buildings John Rhea, Chairman, NYC Housing Authority Janette Sadik-Khan, Commissioner, Department of Transportation Carter Strickland, Commissioner, Department of Environmental Protection Dennis Walcott, Chancellor, Department of Education Many of the agencies represented on the Task Force had not previously had a programmatic focus on public health or obesity, but each was engaged in activities that could improve the health of New Yorkers by improving the food environment; making tap water more accessible; making public spaces more amenable to physical activity or active transportation; promoting building design that encouraged physical activity; or marshaling resources to identify and best treat children at risk of obesity-related diseases. The Task Force identified four key goals to guide its work: Reduce obesity Address disparities between communities Reduce preventable health conditions Create strategies to lower health care spending and lost productivity Three workgroups – Food Environment, Physical Activity/Physical Design, and City Practices -- were convened on multiple occasions to generate and vet innovative ideas. In addition, outside stakeholders were consulted informally and in structured roundtables to brainstorm and refine proposals. The following outlines the findings and recommendations of the Task Force. ***** 4 Finding: Obesity is one of our most serious and rapidly growing health problems New York City – like the rest of the nation – is experiencing an obesity crisis. Obesity is among the most rapidly growing serious health problems we face as Americans. In the early 1960s it affected only 13 percent of Americans; by 2007-2008 one-third (34 percent) were obese.i It is also a leading cause of preventable death, second only to tobacco, and kills 5,800 New York City residents per year. Being overweight or obese is now the norm in our city: 58 percent of adults – or a total of 3,437,000 people – are overweight or obese. And the obesity epidemic strikes hardest in communities already suffering from health and economic disparities, particularly our black, Latino and low-income communities where the rate of overweight and obesity reaches 70 percent in some neighborhoods. Source: NYC Community Health Survey (CHS) 2002-2010, Youth Risk Behavior Survey (YRBS) 2001-2011, NYC FITNESSGRAM 2006-2010. Obesity statistics are even more startling among NYC’s youth, despite recent progress. Among NYC children ages 6-11 years, 21.3 percent are obese versus 19.6 percent nationally.ii Even more are overweight and on a path to obesity once they are adults. The obesity epidemic, if left unchecked, threatens to reverse the enormous progress made in health and life expectancy in recent decades.iii If obesity rates continue to grow, this generation of children may live shorter lives than their parents. Obesity is not a cosmetic problem. Epidemic obesity has led to massive increases in prevalence of Type II diabetes, which can result in blindness, hypertension, and amputations. One in three adult New Yorkers now either has diabetes or a condition known as pre-diabetes. Obesity also 5 increases cancer, heart disease, arthritis, depression, asthma and a host of other problems. Severe obesity leads many to immobility and depression. In NYC as of 2007, there were 2,600 hospitalizations for amputations related to diabetes and 1,400 people who end up on dialysis due to diabetes.iv In addition, applying national estimates to the NYC population, over 100,000 adults have diabetic retinopathy (eye disease) which if untreated, can lead to blindness.v Finding: Obesity has a disproportionate impact on low-income and minority communities The toll of obesity and resulting diabetes is striking New Yorkers unequally. For example, residents of Bedford Stuyvesant or East New York are four times more likely than a resident of the Upper East Side to die of diabetes. Black New Yorkers are almost three times more likely, and Hispanics twice as likely as whites to die from diabetes.vi Obesity is also more common among those with mental illness. Finding: Obesity is expensive Obesity is costly for society, government in general, and NYC specifically. Obesity cost the nation $147 billion in 2006 in direct medical costs. Estimates suggest that annual medical expenditures would be between 7-11 percent lower in the absence of obesity. Moreover, a substantial fraction of obesity costs are financed by the public sector via Medicaid and Medicare, which affects both the federal and state budgets. These fractions range from 25 to 64 percent.vii Worker productivity is also affected: higher rates of death among obese employees costs roughly $44 billion annually nationwide; loss of productivity due to disability among active workers ($39 billion); and loss of productivity due to total disability ($65 billion) from overweight and obesity add to that toll.viii In 2006, in New York State alone, all insurers spent about $11.1 billion to address obesity, including $2.7 billion spent by Medicare and $4 billion by Medicaid. For NYS Medicaid, 11 percent of 2006 expenditures were attributable to obesity.ix This translates to about $2.7 billion in Medicaid expenses for NYC residents for obesity. Finding: Obesity is an environmental disease People’s genes have not changed over these last decades, but our food and physical activity environments certainly have. Sugary drinks are the leading items associated with excess intake of calories in adults.x Sugary drinks, along with other junk food, are now ubiquitous, calorie dense, cheap, served in large portion sizes and aggressively promoted. Sugary drinks and junk food in particular are everywhere, even in places like newspaper stands, pharmacies, gas stations, bookstores and hardware stores.xi In 2006, 44 companies spent $1.6 billion to promote food and beverages just to children and teens alone.xii No doubt because of the ubiquity of these products and their promotion in our society, average caloric intake increased by 200-300 calories per day over the past 30 years,xiii and sugary drinks were the single largest contributor to this increase.xiv 6 Physical activity levels are also largely environmentally determined. Physical inactivity also contributes to obesity, high blood pressure and high blood glucose. Countries with infrastructures that facilitate high rates of walking, bicycling and use of public transportation have lower levels of obesity. In fact, NYC has relatively high levels of public transportation and low levels of car use; nonetheless, even here many sources of activity have been designed out of our environment. Fewer people engage in manual work, staircases have been replaced by elevators and escalators, walking by vehicles, and leisure activities are increasingly electronic. Cities were increasingly designed to make room for cars rather than people over the 20th century and that trend is only beginning to be reversed. Reversing Obesity Trends in New York City – First Generation Efforts For over ten years, NYC has led the nation in its efforts to combat obesity, especially among children. There have been numerous policies, programs, and initiatives implemented that directly and indirectly address the obesity epidemic. Examples include: Calorie Counts: NYC requires chain restaurants that hold NYC Department of Health and Mental Hygiene (DOHMH) permits to post calorie information prominently on menu boards and menus. Meal and Vending Standards: NYC established nutritional standards for every City agency that purchases or serves meals to clients to improve the health of the 1.1 million students that attend City schools; patients in City hospitals and nursing homes; clients such as those served by homeless shelters, day cares and senior centers; and inmates in City jails. The City also established standards for City vending machines, reducing the availability of high calorie snacks and sugar sweetened beverages in City facilities. Green Carts: NYC made available 1000 green carts permits to sell raw fruits and vegetables only: 350 permits for Brooklyn, 350 for the Bronx, 150 for Manhattan, 100 for Queens, and 50 for Staten Island. This initiative, with the support of the Laurie M. Tisch Illumination Fund, funds micro-loans and technical assistance for Green Cart operators, as well as branding, marketing, and outreach to encourage residents of the Green Cart areas to purchase fresh produce from the carts. Health Bucks: Worth $2 each, Health Bucks are developed and distributed by NYC DOHMH District Public Health Offices and can be used to purchase fresh fruits and vegetables at participating farmers markets. Farmers' markets that accept food stamps will give one Health Buck coupon to each customer for every $5 spent using food stamps. Move-to-Improve: Offered through the New York City Departments of Health and Education, this is a comprehensive and engaging way to help teachers integrate physical activity into all areas of classroom academics. This initiative is funded in part by the Centers for Disease Control and Prevention – Communities Putting Prevention to Work grant and 7 City Council Funding. Active Design Guidelines: Developed by a partnership of the NYC Departments of Design and Construction, Health and Mental Hygiene, Transportation, City Planning, and Office of Management and Budget. This initiative provides architects and urban designers with a manual of strategies for creating healthier buildings, streets, and urban spaces, based on the latest academic research and best practices in the field. Urban Cycling: NYC has re-imagined the urban streetscape to promote safe bicycling for recreation and commuting, The DOT has completed the City's ambitious goal of building 250 bike-lane miles in all five boroughs in just three years. Reversing Obesity Trends in New York City – The Next Wave The Obesity Task Force analyzed data showing the impact of many of these initiatives and in some cases recommended expanded City commitments to existing successful programs. Other initiatives involve bold new approaches – including reducing consumption of sugar sweetened beverages through a maximum drink size; developing a public-private partnership to promote Active Design throughout New York City and eventually nationwide; bringing large scale urban agriculture to unused spaces at our public housing developments. Brief descriptions of all the recommended initiatives are provided below. Goals and Indicators by 2016 With implementation of the following bold initiatives over a five-year period, we expect meaningful reductions in obesity rates and improved behaviors among New Yorkers. Reduce the Prevalence of Obesity: Reduce the percent of NYC adults who are obese by 10% (23.4% to 21.1%) Reduce the percent of children (K-8th grade) who are obese by 15% (20.7% to 17.6%) Reduce the percent of adult New Yorkers who: Consume one or more sugary drinks per day by 30% (30.3% to 21.2%) Consumed no servings of fruits and vegetables in the previous day by 30% (11.6% to 8.1%) Reported no physical activity in the past 30 days by 15% (27.3% to 23.3%) 8 A. Initiatives - Prevent Obesity in Children Two out of every five NYC elementary school children remain overweight or obese and the health consequences are dire, ranging from hypertension to Type II diabetes. Obese children and adolescents also are more likely to become obese adults. Even while young, they are more likely to develop obesity-related conditions such as high cholesterol, high blood pressure, and Type II diabetes. There are indications that the City’s efforts to combat childhood obesity are starting to have an impact. From 2006–2007 to 2010–2011, the prevalence of obesity among New York City public elementary and middle school students decreased by 5.5 percent, from 21.9 to 20.7 percent. Decreases in obesity prevalence were most notable among children aged 5–6 years and were greater among white and Asian/Pacific Islander children than among Hispanic and black children. Among children aged 5-6 years, the reductions were greater in communities with low poverty rates than in poor communities. The obesity rate among 5- year olds decreased 16.7 percent (from 16.8% to 14.0%) in low poverty areas, compared with a decrease of 2.7 percent (from 22.2% to 21.6%) in very high poverty areas. Among children in all age groups, the greatest reductions were among white children (12.5%, from 17.6% to 15.4%) and Asian/Pacific Islander children (7.6%, from 14.5% to 13.4%).xv While these declines are important the overall rates of obesity and overweight among NYC children remain high, particularly for children of color. Source: NYC Fitnessgram data, 2006-2010. # 1 - Promote and expand the Department of Education’s nutrition and wellness efforts Comprehensive nutrition and wellness approaches have been shown to be effective in reducing the incidence of overweight in school children. While NYC schools have adopted many 9 significant changes to improve students’ access to, and knowledge of, healthy foods and behaviors, there remains an opportunity to further integrate these efforts and encourage schools to create and support healthy environments. The Department of Education (DOE) will extend the reach of its current initiatives by (1) increasing the School Wellness Council Grant program, which allocates $2,500 to schools that develop Wellness Councils and activities to an additional 75 schools per year, (2) creating DOE staff “Wellness Coordinators” to provide technical assistance and implementation support to schools seeking to enhance their environments, and (3) linking health and nutrition education to the school environment, particularly in the school cafeteria. Through these efforts, students’ health will be promoted by providing the education, skills, social support and environmental reinforcement needed to help children adopt long-term, healthy eating behaviors. # 2 – Install water jets to establish students’ preference for water Approximately one-third of added sugar in the US diet comes from carbonated beverages, and 9 percent from fruit drinks. Because behaviors are established at an early age, encouraging children to drink water can play an important role in addressing childhood obesity. Water jets, which make cold, fresh tap water easily available to students, have been installed in more than 300 city school cafeterias. Because environmental changes in schools are a core strategy for helping students learn about healthy behaviors, the City will embark on a significant expansion in water jets installation with the aim of adding more than 700 new water jets in schools and reaching the vast majority of City students. # 3 - Expand the school gardens initiative to teach students about the origin and taste of healthy food Nationwide, it is reported that children do not consume the recommended amounts of fruits and vegetables, and this is especially true for minority children. School gardens are a positive way to educate children about farming, foods, and healthy eating habits at a formative age. Numerous studies have also shown that school gardens and related activities have been linked to increased fruit and vegetable consumption in children. Through a joint initiative of GrowNYC, the Mayor’s Fund, and city and state government partners, the citywide school garden’s initiative, Grow to Learn was launched in 2010. There are approximately 200 registered school gardens in the City today, but because of growing interest, the Grow to Learn program has found many more schools applying for its mini-grant program than can currently be accommodated. By expanding the citywide school gardens initiative by 50 additional grants per year, New York City will make substantial strides toward the goal of a well-utilized garden at every school. 10 # 4 - Install salad bars in all New York City schools Increasing exposure and familiarity with fresh fruits and vegetables are factors that influence the development of food preferences. The DOE, with the support of the Mayor’s Fund and other partners, has installed more than 800 salad bars in City schools through the NYC School Salad Bar Initiative. To maximize the reach of this important initiative, the City will install salad bars in all schools city-wide, to ensure that all New York City schoolchildren have access to fresh vegetables on a daily basis. # 5 - Improve nutrition at City-licensed children’s camps Nutrition standards have been implemented and improved in schools and City licensed day care centers, but currently there are no nutrition standards in City licensed children’s camps where many children eat one to two meals during the summer months. The DOHMH will propose to amend the New York City Health Code to create nutrition guidelines for the approximately 1,000 City permitted children’s camps, which provide more than 165,000 camp slots for children each summer. Proposed changes will focus on avoiding sugary drinks, an important factor in fighting the obesity epidemic. # 6 - Increase physical activity for elementary children through Move-To-Improve Despite the importance of physical activity, only 49 percent of boys and 35 percent of girls in the United States ages 6 – 11 years old meet the CDC guidelines of 60 minutes of physical activity per day. Worse, few NYC elementary schools can even meet the State mandate for 120 minutes of physical activity per week. In response, the DOHMH and DOE developed Move-To-Improve (MTI), a groundbreaking, evidence-based program that trains kindergarten through 5th grade classroom teachers on ways to integrate physical education into their daily academic schedules. MTI has been shown to increase classroom-based physical activity threefold. Expanding the program’s capacity to reach most public school classroom teachers will significantly increase the number of students who receive daily physical education and help them to develop a lifetime of healthy behaviors. 11 Source: Move-to-Improve Program. Courtesy of NYC DOHMH. # 7 - Add playground attendants who lead free physical activity programs in City parks Among population-based interventions that are known to be effective, promoting physical activity among children shows strong evidence of success. In an effort to reduce childhood obesity and encourage more physical activity among NYC children, the NYC Parks Department (DPR) will extend Kids in Motion (an outgrowth of Parks’ successful Playground Associate program), which is an innovative fitness and sports program designed to encourage play and outdoor activity. By hiring playground attendants to administer the Kids in Motion program, DPR will expand sports and fitness activities at select playgrounds across NYC with a special emphasis on neighborhoods with high rates of obesity and chronic disease: South Bronx, East and Central Harlem, and Central Brooklyn. # 8 - Share play spaces across programs such as Head Start and Shape Up NYC New Yorkers take pride in the abundance of beautiful parks scattered throughout the City that provide venues for play and exercise. While in some areas these sites are numerous, in others there are New Yorkers living farther than a 10-minute walk to a park or playground, making it difficult to provide spaces for recreational activities. The City, through an interagency working group, will conduct a needs assessment to identify both space shortfalls and new potential space- sharing opportunities for daycares, after school programs, and senior centers, among other programs; and create partnerships between agencies and private entities to leverage any 12 appropriate shared spaces or partner to renovate those in poor repair. These initiatives will increase play and exercise opportunities across City programs. # 9 - Increase active transportation initiatives in schools In New York City, a majority of students walk or take public transit to school, but tens of thousands use school buses to travel short distances. NYC Department of Transportation’s (DOT) “We’re Walking Here” program, which will be expanded to 200 schools, will provide curriculum support on the benefits of active transportation as well as route planning resources. Additionally, drop off points near safe walking corridors will be established in neighborhoods where students are not walking based on safety concerns or because their parents need to drive them to get to their jobs. B. Initiatives - Encourage Healthy Eating Americans consume about 200-300 more calories per day than 30 years ago,xvi with the largest single increase due to sugar-sweetened drinks. Nearly half of added sugar we consume is from sugar-sweetened drinks.xvii There also has been a significant increase in portion sizes over the past several decades. The promotion of healthy eating includes decreasing the consumption of foods and beverages that are high in calories and nutrient poor and increasing the consumption of foods and beverages that are low in calories and nutrient rich. Source: CHS 2010 data. 13 Fortunately, New Yorkers are making some strides towards healthier eating. For example, between 2007 and 2010, the percentage of adults who reported on the DOHMH’s annual telephone survey that they drank one or more sugary drinks a day fell from 36 percent to 30 percent – and in high-poverty neighborhoods, the percentage of adults who drank one or more sugary drinks per day decreased from 44 percent in 2007 to 36 percent in 2010. Also, the percentage of adults who said that they ate no fruits or vegetables in the previous day fell from 14 percent in 2004 to 12 percent in 2010. Eating more fruits and vegetables is one way to protect against many chronic conditions, such as heart disease and Type II diabetes. However, obesity and other chronic conditions persist in NYC and exert a disproportionate burden on certain communities and populations. For example, in 2010, even though overall sugary drink consumption declined sugary drink consumption in high-need neighborhoods like the South Bronx ranged between 32 and 45 percent, compared to 28 percent in other neighborhoods. Similarly, in that same year, 15 percent of New Yorkers in low-income neighborhoods reported eating no fruits or vegetables in the previous day, compared to 8 percent in high-income NYC neighborhoods. NYC must do more. Source: Young L. The Portion Teller Plan: The No-Diet Reality Guide to Eating, Cheating, and Losing Weight Permanently. New York: Morgan Road Books, 2005. Print ; McDonald’s Website, retrieved November 10, 2010: http://nutrition.mcdonalds.com/getnutrition/nutritionfacts.pdf 14 # 10 - Establish a maximum size for sugary drinks in food service establishments (FSEs) Sugary drink portion sizes have exploded over recent years. The original Coca-Cola bottle size was 6.5 fluid ounces, significantly smaller than the vast majority of sizes for sale today.xviii Cup sizes for fountain drinks have also grown significantly over the past fifty years. McDonald’s has increased drink sizes 457 percent since 1955, from 7 fluid ounces to 32 fluid ounces.xix, xx These oversized drinks lead us to drink more and take in more calories, but do not help us feel more full.xxi, xxii Setting a maximum size for sugary drinks offered and sold in restaurants and other Food Service Establishments is a way we can change the default and help reacquaint New Yorkers with “human size” portions to reduce excessive consumption of sugary drinks. # 11 - Public education campaigns Source: NYC DOHMH Subway Map 2011. NYC has been a leader in developing hard-hitting media messages that communicate the risks of supersize portions and excessive consumption of sugary drinks. These straightforward messages can get people talking about the downsides of excess sugar and calories and contribute to shifting norms around healthy eating. About half of people who see the campaigns also say they are less likely to drink sugary drinks. And even though the prevalence of sugary drink consumption has decreased, in part due to the educational efforts of the City, sugary drink consumption is still too high. The City will continue to develop eye-catching media campaigns to help the public understand the health implications of overconsumption of large portions and sugary drinks. # 12 – Healthy Hospital Initiative standards The Healthy Hospital Food Initiative is a new effort by the New York City DOHMH to help prevent chronic disease by creating a healthier food environment in New York City hospitals. New York City has more than sixty hospitals, through whose doors walk millions of patients, employees, and visitors each year. Hospitals’ focus on prevention and health promotion make providing healthy food a natural priority. Hospitals throughout the city will be invited to adopt the New York City Healthy Hospital Initiative Standards for settings including vending and cafeterias, which give employees, patients, and visitors better access to healthy food and beverages. New York City’s Health and Hospitals Corporation has already adopted a majority of these standards, improving the nutrition of meals provided and beverages dispensed in vending machines at 15 facilities across the City. 15 # 13 - Healthy food pantries and soup kitchens Many emergency food providers aim to help their customers make healthy food choices while meeting the needs of hungry New Yorkers. Although food purchased and provided through the City’s Emergency Food Assistance Program (EFAP) adheres to nutritional standards, there are no guidelines for donated food received by pantry providers. The NYC DOHMH will develop best nutrition practices for the City’s nearly 500 EFAP pantries, which last year served an average of 800,000 New Yorkers monthly. An education component for those frequenting these programs will also be provided to help them better understand health concerns about obesity and how to access, store, and cook healthier food. # 14 - Urban agriculture at New York City Housing Authority developments The New York City Housing Authority (NYCHA) is the largest public housing authority in North America, with developments throughout the five boroughs. NYCHA’s Garden and Greening Unit manages the largest running public gardening program in the nation and has supported residents in developing more than 600 community based garden plots. Building on this tradition, NYCHA will create 5 new, much larger-scale urban agriculture sites. Studies have linked urban agriculture to increased health by establishing better dietary choices through healthy food access, nutrition education, and heightened physical activity. NYCHA will seek to partner with nonprofit organizations to develop five one-acre farm sites and provide programming, including a job training component. Sites may result in farmers markets, education programming for youth, or activities for seniors, depending on the projects’ focus and development. # 15 - Create new community garden sites Many NYC residents live in areas with limited access to healthy food options and with higher rates of diet related disease. Urban agriculture and gardening can enhance the health and quality of life, improve access to healthy and fresh food, and connect residents to where their food comes from. 15 municipal sites suitable for urban agriculture projects will be identified in the South Bronx, East and Central Harlem, and North and Central Brooklyn, to target areas most in need. These sites will be made available through GreenThumb, a program administered by the NYC Parks and Recreation Department, and established to support urban gardeners and farmers. # 16 - Expanding healthy food access in the retail environment Despite the City’s leadership in developing model programs to increase retail availability of healthy food, there are continuing disparities in eating behaviors across the City. We will strengthen and expand the city’s retail access initiatives by supporting existing effective programs and launching new initiatives targeting specific neighborhoods in need. The Food Retail Expansion to Support Health Initiative (FRESH) gives zoning incentives to build 16 supermarkets in areas of need; these incentives would be expanded to more communities. Our Green Carts program has resulted in almost 500 produce vendors in underserved neighborhoods, yet the inability of most Green Carts to accept food stamps limits the reach of the program. The City will provide funding for approximately 100 vendors to obtain Electronic Benefit Transfer machines, making it possible for more food stamp users to make healthy purchases. We will also increase our Health Bucks program - which incentivizes the use of SNAP dollars at farmers markets, helping both nearby farmers and food stamp users – by 50 percent, ensuring more City residents can buy the freshest seasonal produce. Finally, a new initiative, “Shop Healthy NYC” is a community based approach to improving the food environment. The goal of the initiative is to encourage retailers to take specific steps such as offering lower calorie and lower sodium items, fresh produce, and healthy meal options. The City will provide targeted, intensive outreach and technical assistance to hundreds of community groups and retailers in specific high need neighborhoods, in the process creating lasting food retail change. # 17 - Access to NYC tap water New York City’s tap water is world renowned for its high quality and purity. By making tap water more accessible and available in public spaces, the City can promote a healthful, sustainable, and free alternative to sugar sweetened beverages. Not only is replacing caloric beverages with non-caloric beverages like water an effective weight loss strategy, but active New Yorkers – walkers, runners and bicyclists – also benefit from greater access to drinking water. We will promote and expand NYC tap water consumption in public spaces by working with retail partners, testing a working prototype of a redesigned “NYC Water Fountain,” and growing programs such as Water-On-the-Go. These efforts will be accompanied by an education campaign informing New Yorkers of the high quality of NYC tap water. C. Initiatives - Promote Physical Activity Source: NYC Department of Transportation. Increasing physical activity is an integral part of preventing and reducing obesity. Physical inactivity is associated with increased risk for certain chronic diseases, including cardiovascular disease, diabetes, and osteoporosis. Physical inactivity also contributes to obesity, high blood pressure and high blood glucose.xxiii Still, research shows that fewer than half of U.S. adults and youth reported meeting recommended levels of physical activity. In New York City, physical inactivity contributes to one in eight deaths annually among New Yorkers aged 30 and older from cardiovascular disease (including heart 17 disease and stroke), cancer, and diabetes – an estimated 6,300 deaths a year. These rates are highest in poor communities in New York City. More than 25percent of New Yorkers and 32 percent of low-income residents report having no leisure-time physical activity in the last 30 days. Changes to the built environment can make a difference. The structure of the built environment is increasingly recognized as an important facilitator—or inhibitor—of a healthy lifestyle, given that where and how individuals live determines their opportunities to be physically active. # 18 - Establish a Center for Active Design The Active Design Guidelines (ADGs) are a comprehensive, award-winning set of strategies to increase physical activity by using the design of the built environment. They can only be implemented at full scale by architects, urban planners, green building professionals, and building management professionals who are aware the guidelines exist, trained on the best way to implement them, and encouraged to do so. Therefore, realizing the full transformative potential of the ADGs requires a strong outreach and training program to inform and educate these groups and develop a core of active design experts and advocates within the City government and private sector. Over 11,000 copies of the guidelines have been downloaded internationally, and they have been the subject of more than 20 articles. Design and planning professionals are seeking training in the ADGs, and real estate developers are looking for guidance. To satisfy this unmet demand for education and training, the City will establish a “Center for Active Design” (CAD), a unique public/private partnership supporting the design and development community to create an active built environment across NYC and ultimately the country. The CAD will be a focal point for continuing research, education, and policy in this field and will serve professionals who design, define, construct, and manage the built environment, as well as educators and policy-makers. The CAD will be staffed with architects and design professionals, administrators, public health experts, researchers, and a communications team. A critical tool for addressing the challenge will be the continuing dialogue and research with and among affiliated public health professionals developing the evidence base for this work. # 19 - Facilitate active stair design in buildings In 2010 the City-led Green Codes Task Force published 111 potential changes that would “green” the City’s construction, fire, water, sewer, and zoning codes. Of these, several propose allowances to incorporate active design features in buildings. Four proposals are focused on increasing stair use in New York City’s buildings. These code changes are projected to substantially increase stair use citywide by increasing the visibility and attractiveness of stairs in buildings: 18 Promote Exit Stairway Use for Daily Access between Floors Increase Stairway Visibility with Glazed Doors Promote Stair Use Through Signage Increase Access with Open Stairway Doors with Fail-Safe-Hold-Open Devices Surveys of over 1,200 City staff show that employees are twice as likely to climb stairs when a stair prompt (sign promoting stair use for health and other benefits) is present at points of decision such as elevator call areas and outside stairwells. The NYC DOHMH estimates this increased stair use would assist New Yorkers in losing 550,000 lbs per year, averting 18percent of New York City’s average annual weight gains. # 20 - Increase physical activity for adults and seniors by expanding the Shape Up NYC Program Shape Up NYC is a free citywide fitness program launched in 2004 through a partnership between the NYC Parks Department and the NYC Department of Health and Mental Hygiene (DOHMH) that targets neighborhoods with high rates of obesity and obesity-related disease. The program offers more than 180 free fitness classes every week at 38 locations across the five boroughs including parks, recreation centers, public housing, health facilities, schools, and community centers. Although Shape UP NYC has a presence in many neighborhoods, there are still areas of the city that are either not being served or where the program’s visibility is low. Conversely, the popularity of the program in other neighborhoods means that the demand for classes far outstrips the supply of available fitness facilities. Through an expansion of Shape Up NYC, the NYC Parks Department will offer 100 new indoor classes and 100 new outdoor classes per week. An additional 100 weekly classes will be led by new instructors trained in the Fitness Instructor Training Program. # 21 - Launch the Citi Bike Program New York City will launch Citi Bike, one of the world’s largest bike sharing systems, in July 2012. By mid-2013, the system will comprise 10,000 bicycles and 600 docking stations, serving large portions of Manhattan and Brooklyn and part of Queens. People using the bikes can return them to any station, creating an efficient network offering a huge number of possible trips. Citi Bike comes at no cost to taxpayers, because the wireless station network is highly efficient and Citi’s sponsorship covers the cost of the equipment. Citi Bike will be a quick, human-powered way to get around. Citi Bike provides cycling as an option while relieving users of any concern for bike storage or maintenance. In comparable cities, up to 50percent of bike share trips are made to get to or from transit stations. In New York, Citi Bike will extend transit’s reach into areas that don’t have great subway coverage, like waterfronts and former industrial neighborhoods. 19 D. Initiatives - Lead By Example With more than 300,000 employees and an array of programs offered by our agencies that encourage physical activity and help prevent obesity, the City of New York stands to lead the way in the fight against obesity. The Mayor’s Obesity Task Force examined a variety of ideas to make the workplace healthier for City employees that expanded upon initiatives already underway. Source: NYC DOHMH. Nearly four years ago New York became the first major city in the country to set nutrition standards for all foods purchased and served by City agencies with the goal of improving the health of all New Yorkers by decreasing the risk of chronic disease related to poor nutritional intake. These standards ensure that the 290 million snacks and meals served annually by City agencies and their programs are healthier than ever. Since the initial implementation of New York City Food Standards in 2008, additional standards were established for all beverage and food vending machines on City property. Several agencies have worked as partners to address our obesity epidemic by increasing stairwell access in City buildings, promoting stairway use through new signage and campaigns, and installing indoor bike parking for City employees to encourage commuter cycling. The Active Design Guidelines and its physical-activity promoting strategies have also been integrated into many City requests-for-proposals and contracts. All of the recommended initiatives represent the City’s latest effort to combat obesity and serve as a model for private employers to follow. Increased outreach to encourage the adoption of model employer policies around food and physical activity are an important part of this effort to lead by example. # 22 - Evaluate all City construction projects for active design opportunities The structure of the built environment is increasingly recognized as an important facilitator (or inhibitor) of a healthy lifestyle, given that where and how individuals live determines their opportunities to be physically active. In 2010, the City published the Active Design Guidelines (ADGs), a set of strategies that designers, developers, and policy makers can use to increase 20 opportunities for physical activity in the built environment. Active design helps address obesity by encouraging and enabling people to move more actively through the City’s neighborhoods, streets, and buildings. Although the City government designs, builds, and finances buildings and neighborhoods that are used by millions of people, active design is not routinely integrated into the design of these spaces. This amounts to a lost opportunity for the City to “make the healthy choice the easy choice” by ensuring that the buildings and spaces it owns or helps develop incorporate active design features. A new policy will be established for all requests-for-proposals, contracts, standards, and guidelines that regulate new construction and major renovation projects for the City that will require a project review of the ADGs and the incorporation of active design strategies (where appropriate). # 23 - Offer wellness program to NYC employees with focus on healthy eating and fitness Currently, the City’s health plans offer coverage for health treatment, but do not include a wellness component to encourage a healthy lifestyle and monitor key health indicators that could help City workers make more informed choices about their health. We expect that the rates of obese and overweight City workers are similar to what is found in the rest of the adult NYC population. The City therefore has a major opportunity to prevent and address the behavior risks and chronic illness associated with obesity through workplace wellness initiatives, which have been shown to improve health, reduce health care costs, and increase productivity. Working with our partners in labor, we will explore how we can add a wellness program to the City’s health care plans. While the specifics of such a program must be worked out, typical features of wellness programs include health-risk assessments and screenings, weight management and exercise programs, health education—including classes or referrals to online sites for health advice—and changes in the work environment to encourage exercise and healthy eating. # 24 - Adopt expanded NYC Food Standards at all City agencies to include food served at meetings, trainings, and events The NYC Food Standards are one of the many important tools used in the City’s fight against the obesity epidemic by encouraging healthy eating. Expanding these standards to include the food and beverages provided at all City meetings, trainings, and events will not only contribute to a healthy, balanced diet, but it also will promote good health among employees. # 25 - Improve and expand the identification and treatment of obese children & their families at NYC hospitals and schools While the obesity rates of children living in New York City have decreased slightly over the past five years, there are still tens of thousands of young people who will suffer lifelong health 21 problems because they are overweight or obese. To prevent our children from enduring the physical and financial costs of treating their chronic diseases, the City will expand programs to counsel children and their families on behavior change as part of larger attempt to facilitate the development of healthy behaviors. The NYC Health and Hospitals Corporation is developing new pediatric obesity guidelines for its pediatricians and family physicians to screen for and diagnose obesity among children. Such guidelines should be used to counsel children and parents on change related to diet and physical activity by referring them to services within HHC facilities and resources offered by external organizations. Additionally, the NYC DOHMH will broaden its Healthy Options and Physical Activity Program in Schools that helps children in NYC public schools who are struggling with high levels of excess weight. Following a clinical assessment, school nurses educate these at-risk students and make referrals to primary care physicians and community organizations to address students’ needs. # 26 - Examine sidewalk and stairway design improvements to increase active lifestyles Walking is an important form of physical activity that can easily be incorporated into people’s everyday routines, helping to reduce the risk of obesity in people of multiple ages and abilities. While people cannot walk in the city without sidewalks, the overall quality of the sidewalk can drastically affect the pedestrian experience and can encourage or entice people to walk further and more often than they might normally do. Although the city’s Active Design Guidelines have been developed to promote active living where we work, live and play, the majority of new buildings still prioritize easy access to elevators and escalators, relegating stairs to less accessible locations and dedicated to emergency use only. Research shows that when stairs are easy to locate, convenient and attractive, they tend to be well-used. Furthermore, locating stairs near the entrances of buildings helps encourage physical activity and health. Capitalizing on the evidence that links improved stairway and sidewalk design with increased levels of physical activity, the City should conduct two studies with the goal of creating a set of best practices on sidewalk and stairway design. Completing a sidewalk study will broaden our understanding of the various agencies and regulations that shape our sidewalk experience in New York City and a similar study on stair design will help developers comprehend how to make them more attractive and visible. Together, the findings will provide a resource to inform how new developments and neighborhoods are designed and built for a healthier New York. 22 Endnotes i National Health Examination Survey, 1960-62; National Health and Nutrition Examination Survey (1971-2008. ii NHANES 2007-2008 iii Olshansky SJ, et al. A Potential Decline in Life Expectancy in the United States in the 21st Century, New England Journal of medicine, 2005; 352:1138-1145 iv http://www.health.ny.gov/statistics/sparcs/. v http://www.cdc.gov/diabetes/pubs/pdf/ndfs_2011.pdf vi Raufman J, Berger M, Olson C, Kerker B. Diabetes among New York City Adults. NYC Vital Signs 2009, 8(5); 1–4. vii Trogdon JG, Finkelstein EA, Feagan CW, Cohen JW. State- and Payer-Specific Estimates of Annual Medical Expenditures Attributable to Obesity. Obesity (Silver Spring). 2011 Jun 16. doi: 10.1038/oby.2011.169. [Epub ahead of print] viii Behan DB, Cox SH. Obesity and its Relation to Mortality and Morbidity Costs. Society of Actuaries, December 2010. Based on 90% of their calculated costs for the US and Canada, as per author’s discussion. ix Trogdon JG, Finkelstein EA, Feagan CW, Cohen JW. State- and Payer-Specific Estimates of Annual Medical Expenditures Attributable to Obesity. Obesity (Silver Spring). 2011 Jun 16. doi: 10.1038/oby.2011.169. [Epub ahead of print] xi Farley TA, Baker ET, Futrell L, Rice JC. The ubiquity of energy-dense snack foods: a national multicity study. Am J Public Health. 2009;100:306-311. xii Federal Trade Commission, Marketing Food to Children and Adolescents: A review of industry expenditures, activities and self-regulation. Washington, DC, 2008. xiii Trends in Intake of Energy and Macronutrients --- United States, 1971—2000. MMWR Weekly. 53(04);80-82. Wright JD, Wang C-Y. Trends in intake of energy and macronutrients in adults from 1999-2000 through 2007-2008. NCHS data brief, no 49. Hyattsville, MD: National Center for Health Statistics. 2010. Accessed online at http://www.cdc.gov/nchs/data/databriefs/db49.htm#ref2 on February 12, 2011 xiv Nielsen SJ, Popkin BM. Changes in beverage intake between 1977 and 2001. Am J Prev Med. 2004 Oct;27(3): 205-10. xv Centers for Disease Control and Prevention. “Obesity in K-8 Students – New York City, 2006-07 to 2010-11 School Years”, Morbidity and Mortality Weekly Report, 60(49);1673-1678. December 2011. xvi Finkelstein EA, et al. Economic causes and consequences of obesity. Ann Rev Pub Health. 2005; 26:239-257. xvii Guthrie JF, Morton JF. Food sources of added sweeteners in the diets of Americans. J Am Diet Assoc. 2000;100:43-51. xviii Retrieved on 5/7/2012 from: http://www.thecoca-colacompany.com/ourcompany/historybottling.html. xix Young L, Nestle M. Portion sizes and obesity: Responses of fast-food companies. J Pub Health Policy 2007;28:238-48. 23 xx McDonalds Nutrition Information. Retrieved on January 6, 2012 from: http://nutrition.mcdonalds.com/getnutrition/nutritionfacts.pdf. xxi Wansink B, Painter JE, North J. Bottomless bowls: why visual cues of portion size may influence intake. Obes Res 2005;13(1):93-100. xxii Flood J, Roe L, Rolls B. The effect of increased beverage portion size on energy intake at a meal. J Am Diet Assoc 2006;106:1984-90. xxiii Danaei, G., Ding, E.L., Mozaffarian, D., Taylor, B., Rehm, J., Murray, C.J.L., Ezzati, M., 2009. The preventable causes of death in the United States: comparative risk assessment of dietary, lifestyle, and metabolic risk factors. PLoS Medcine 6, 4.