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The authors discuss the litigation over New York City’s “Portion Cap Rule,” which restricts the size of sugary drink containers. The authors provide a history of the rule, from its promulgation by the Board of Health to the Appellate Division’s decision invalidating the rule. The authors also comment on the dispute between the parties over how to frame the rule. Opponents of the rule characterize the measure as an unwarranted and unprecedented incursion of consumer choice and personal freedom. Proponents of the rule, including the City, view the rule as a modest measure intended to address obesity, a significant—even alarming—public health issue.

The authors further discuss how the disagreement over how to frame this dispute illustrates the nature of the judgment the courts have made thus far. In determining whether the Board of Health has the authority to promulgate the rule, the courts have applied the four-factor test set out by the Court of Appeals in Boreali v. Axelrod in order to draw the “difficult-to-demarcate line” between permissible agency rulemaking and impermissible legislating. The authors contend that the courts' application of the Boreali factors is not only discretionary, but some factors require nothing more than an exercise of classification or judgment. Thus far, the petitioners have been more successful than the City in persuading the courts that their view of the rule, and of the governing separation of powers principles, is correct.


Reprinted with permission from: Municipal Lawyer, Fall 2013, Vol. 27, No. 3, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

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27 Mun. Law. 29