Recently, New York City’s forward-thinking and often controversial Department of Mental Health and Hygiene enacted a regulation that limited the volume of soda sold at food service establishments in the City. The Portion Cap Rule, called the “Soda Ban” by critics, restricted sugary beverage volume to less than sixteen ounces. The “Ban” sparked public uproar in the City, especially from restaurants, vendors, and local business coalitions. Historically, New York has always been at the forefront of public health interventions. And, as public health became increasingly concerned with chronic, as opposed to communicable, disease, Mayor Michael Bloomberg was an ally to public health innovation.
This Article addresses the recent case challenging the constitutionality of the Portion Cap Rule before New York’s intermediate appellate court. While the court found the regulation unconstitutional, this Author suggests that the controlling case is factually distinguishable from the situation surrounding the Soda Ban. The controlling case on the constitutionality of public health regulation addresses four factors: (1) whether the regulation considers economic interests; (2) whether the administrative body essentially creates legislation by acting upon a clean slate or actually gap-fills existing legislation as it should; (3) whether the subject of this regulation is something that the legislature has already considered; and (4) whether the board had the requisite expertise. The court’s analysis of these four factors resulted in the holding that regulation is unconstitutional. This Author submits that the court grossly misunderstood the very nature of public health interventions and analyzes each of these four factors in light of not just the legal precedent of the controlling case, but also the history of public health interventions and the emerging changes in the future of public health.