Big Soda may find out its Big Gulp victory in New York is more a little sip and not all that satisfying.
The New York State Court of Appeals decided 4-2 on Thursday that New York City’s Board of Health exceeded its authority in proposing to limit to 16 ounces the size of sugary drinks that could be served by restaurants, fast-food franchises and similar outlets.
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The board had acted like public health agencies have acted since John Snow convinced the local council to remove the Broad Street water pump handle and stop the cholera epidemic in London in 1854. Public health has been about finding pump handles and removing them ever since, and sugary drinks fit that bill.
At the National Soda Summit earlier this month, a panel of scientific experts made the case against sugary drinks using epidemiology, clinical studies and medical practice. The bottom line was that sugary drinks cause dental caries, obesity, type 2 diabetes, heart disease and other health problems.
That scientific evidentiary base — like Snow’s plotting the pattern of cholera cases around the Broad Street water pump — convinced New York’s health board of the need for action. And its action was reasonable: Limit soda containers at restaurants (the board’s jurisdiction) to 16 ounces, a size that typically contains more than 12 teaspoons of sugar.
Now, 10 teaspoons of sugar is already one more teaspoon than the American Heart Association recommends for an adult male to consume on a daily basis and four more teaspoons than recommended for a woman.
But the court never got to the merits of the New York board’s action.
Instead, the court twisted itself into a legal pretzel over a jurisdictional issue, with the majority arguing that the board had run afoul of an earlier court decision (Boreali v. Axelrod). The majority opinion noted that in Boreali, “we held that the New York State Public Health Council overstepped its regulatory authority when it adopted regulations prohibiting smoking in a wide variety of indoor areas open to the public that had previously been considered, but not adopted, by the State Legislature.”
The irony of the precedent should be noted: Once upon a time, the prohibiting of indoor smoking was seen as regulatory overreach indeed.
In another interesting twist, one of the judges concurring with the majority went to great pains to note the narrowness of the ruling: “Indeed, no one should read today’s decision too broadly. We simply conclude that, under the circumstances of this case, the Board ran afoul of separation of powers principle by creating the portion cap rule.”
In fact, the dissenting opinion — in which the chief judge of the court joined — was blunt in taking on the potential public health harm of the majority’s views: “Today the Court again declares that a controversial regulation runs afoul of separation of powers. In so doing, the majority misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the 21st century. Neither Boreali nor any other doctrine in our jurisprudence compels this unhappy results.”
The dissenting judges then recite a compelling history of public health activism in New York to find pump handles and deal with them, beginning with the 18th century efforts to quarantine and inspect ships docking in New York, saying “(T)hat the residents of New York City no longer count typhoid and dysentery among their chief health concerns is a sign that those scourges have been conquered, not a ground for preventing the Board from turning its attention to contemporary public health threats.”
So, Big Soda should be on notice: The pump handle has been identified, and now it’s just a matter of time as policy initiatives across the country are advanced to reduce sugary drink consumption.
Jim O’Hara is director of Health Promotion Policy at the Center for Science in the Public Interest.
