We really didn't see this coming. After all, who would have expected the beverage industry to challenge Mayor Bloomberg's ban on sodas larger than 16 oz?
Yep, that's sarcasm.
What we didn't expect, however, were administrative law arguments. For those unfamiliar with the ban, it was passed last month, along with the circumcision regulation, by the Department of Health. It limits soda and other beverages with more than 25 calories to 16 oz containers, which means no more super-sized Dr. Pepper.
The stated objective of the ban is to fight the growing obesity epidemic.
Is it overreaching? Possibly.
Is it unfairly blaming one product for the cumulative effects of many unhealthy food and drink products? Certainly.
But that's not the legal issue cited by the lawsuit. According to the plaintiffs, the Department of Health is not vested with the power to make such regulations. That's the City Council's job. Even if they do have the power, their issued regulations are arbitrary and did not follow proper procedures.
One of their arguments is that the DOH does not have the power to issue these types of bans because their previous regulations were more administrative (regulating decals on food trucks) and because the City Council has previously handled similar initiatives, such as the smoking ban. The sole counter-example, the DOH's ban on trans-fat, was ratified by the City Council shortly after it was passed by the DOH.
However, Christine Quinn, who is currently a member of the City Council and opponent of the Soda Ban, had the lawyers for the Council determine whether or not the DOH could issue a ban. Their findings indicated that such a ban was within the DOH's power before the ban was actually passed, reports BevNet.
As for the arbitrary and capricious argument, it certainly is interesting. Typically, administrative bodies are given great leeway in making rules, as long as those rules are within their mandate. Theoretically, the DOH should be able to regulate health issues. However, they also are required to follow certain procedures in making rules.
This rule was apparently issued after a "notice and comment" period. This means the proposal is published, the public voices their opinion, and modifications are made. Despite a number of comments, the rule was published nearly verbatim from Bloomberg's original proposal.
In addition, rules are upheld unless they appear to be arbitrary and capricious. Typically, this is demonstrated by showing that there is no solid reason or logic behind the rule, such as the early-1990s requirement that vehicles have automatic seat belts (which studies indicated were useless). The Soda Ban bans large "sugary" drinks, but has loopholes for juices, drinks containing large amounts of milk (gotta get that venti latte, right?) and allows convenience stores to hawk Big Gulps while movie theatres, restaurants, and street vendors are limited to sixteen ounces.
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