New York City 'Soda Ban' Litigation Resource Page
On September 30, 2012 the New York City Department of Health and Mental Hygiene adopted a proposal by Mayor Michael Bloomberg to ban some "sugary beverages" sold by some businesses. On March 11, 2013, a New York state district judge ruled that the ban was unlawful, blocking the city from implementing the ban. The City appealed the ruling, which is now pending before the New York Supreme Court, First Appellate Division, and oral argument is scheduled for June 11, 2013.
This page will continually be updated to provide information to those businesses that are interested in or affected by the New York City 'soda ban,' which has already sparked reports of potential copycat bans in other jurisdictions, as discussed in a legal filing by the U.S. Chamber.
About the 'Soda Ban' or 'Portion Cap Rule'
The soda ban was purportedly passed in an effort to address certain negative health trends. However, the ban is riddled with nonsensical loopholes that undercut the claimed health objectives of the rule. For example, a food cart is barred from selling a 20-ounce soft drink, while a convenience store on the same block is not. An iced tea manufacturer will be barred from selling a 500 milliliter iced tea, while another business can sell a 30-ounce sugary blended coffee and milk drink or a 24-ounce beer can. The text of the soda ban can be read here.
About the Lawsuit Successfully Challenging the Soda Ban
Given the radical nature of the health board's regulation - an intrusive and heavy-handed product ban that discriminates among businesses - a large and diverse coalition of national, state, and local business and labor groups brought a lawsuit challenging challenging the ban as unlawful. The business plaintiffs include:
- New York Statewide Coalition of Hispanic Chambers of Commerce
- New York Korean-American Grocers Association
- Soft Drink and Brewery Workers Union, Local 812
- International Brotherhood of Teamsters
- National Restaurant Assocation
- National Association of Theare Owners of New York State
- American Beverage Association
On March 11, 2013, Justice Milton Tingling of the New York Supreme Court entered a lengthy order permanently enjoining the defendants from implementing or enforcing the ban, and declaring it to be invalid. Specifically, Justice Tingling found that the ban violated the New York Constitution’s separation of powers doctrine in that:
(1) the ban was premised on economic and political concerns not related to its stated purposes of curbing obesity and safeguarding public health;
(2) in enacting the ban, the Health Department exceeded the power granted to it by the City Charter and impermissibly attempted to take on a regulatory function specifically reserved for the legislature; and
(3) the ban interfered with an ongoing legislative debate about the regulation of sugary drinks, and effectively short-circuited further development of that issue through the legislative process.
Justice Tingling also concluded that the ban was arbitrary and capricious under New York administrative law principles.
New York City appealed the ruling.
The Business Community's 'Amicus' Support in the Appeal
Other business groups rallied to suport the lawsuit by filing "amicus curiae" (or "friend of the court") briefs, both in the district court and in the appeals court. Collectively, these "amici" represent the interests of millions of businesses of every size, industry, and region of the country. These business groups were joined by other interested organizations also concerned by the ban.
The U.S. Chamber of Commerce, et al. Amicus Coalition
- U.S. Chamber of Commerce
- Manhattan Chamber of Commerce
- Staten Island Chamber of Commerce
- Greater Harlem Chamber of Commerce
- National Federation of Independent Businesses
- National Black Chamber of Commerce
- National Association of Manufacturers
- New York Association of Convenience Stores
The Business Council of New York State, et al. Amicus Coalition
- The Business Council of New York State
- The Food Industry Alliance of New York State
- Bodega Association of the United States
- New York Hospitality Alliance
- National Supermarket Association
The NAACP New York State Conference, et al. Amicus Coalition
- NAACP New York State Conference
- Hispanic Federation
- Mexican American Grocers Association
- U.S. Hispanic Chamber of Commerce
The Street Vendor Project also filed an amicus brief.
New York City Councilmembers Opposing the Ban
In addition to the myriad organizations that filed in the appeal challenging the soda ban, 23 members of the New York City Council came out in opposition to the New York health board's ban by also filing an amicus brief with the appeals court. The following councilmembers signed on to the brief.
- Councilmember Letitia James
- Councilmember Annabel Palma
- Councilmember Oliver Koppell
- Councilmember Debbie Rose
- Councilmember Robert Jackson
- Councilmember Melissa Mark-Viverito
- Councilmember Diana Reyna
- Councilmember Julissa Ferreras
- Councilmember Mark Weprin
- Councilmember Charles Barron
- Councilmember Fernando Cabrera
- Councilmember Helen Foster
- Councilmember Peter Koo
- Councilmember Rosie Mendez
- Councilmember Ydanis Rodriquez
- Councilmember Karen Koslowitz
- Councilmember Vincent Gentile
- Councilmember Michael Nelson
- Councilmember Dan Garodnick
- Councilmember Leroy Comrie
- Councilmember Donovan Richards
- Councilmember Maria del Carmen Arroyo
- Councilmember Darlene Mealy
Business Community-led Efforts to Improve Health and Wellness
The business community is very interested in and attentive to national health and wellness trends, both because employers often bear the costs of health care and because businesses must be responsive to market demands, which often call for informative labeling and healthy products. For these reasons, the business community has been on the cutting edge of private sector-led initiatives to improve health and wellness. For more information on such initiatives, check out the links below.
- The Hill: "The Truth About Workplace Wellness Programs: Everybody Wins." By the U.S. Chamber's Randel K. Johnson
- USChamber.com: "Nutrition and Obesity Information Network." U.S. Chamber Business Civic Leadership Council
- USChamber.com: "Innovations in Workplace and Community Wellness: Advancing Private-Public Partnerships." U.S. Chamber Business Civic Leadership Council
- USChamberSmallBusinessNation.com: "Workplace Wellness Toolkit." U.S. Chamber Small Business Nation
- Association of State and Territorial Health Officials, "Childhood Obesity: Harnessing the Power of Public and Private Partnerships"
- Wall Street Journal, "The Business Case for Healthier Food Options" By First Lady Michelle Obama
Legal Documents Related to the Appeal of the 'Soda Ban' Decision
The legal documents related to the ongoing appeal can be downloaded from the following links.
- Trial Court Decision and Opinion -- NY Statewide Hispanic Coalition v. NY Health Board (NY Supreme Court)
Legal Briefing by the Parties to the Lawsuit
- Brief of Business Plaintiffs-Respondents -- NY Statewide Hispanic Coalition v. NY Health Board (NY Supreme Court, Appellate)
- Brief of NY Health Board Defendants-Petitioners -- NY Statewide Hispanic Coalition v. NY Health Board (NY Supreme Court, Appellate)
Amicus Briefs in Support of the Challengers to the Soda Ban
- U.S. Chamber, et al. Amicus Brief -- NY Statewide Hispanic Coalition, et al. v. NY Health Board (NY Supreme Court, Appellate)
- Business Council of New York State, et al. Amicus Brief -- NY Statewide Hispanic Coalition v. NY Health Board (NY Supreme Court, Appellate)
- NY NAACP, et al. Amicus Brief -- NY Statewide Hispanic Coalition v. NY Health Board (NY Supreme Court, Appellate)
- NY Street Vendors Amicus Brief -- NY Statewide Hispanic Coalition v. NY Health Board (NY Supreme Court, Appellate)
- NYC Councilmembers Amicus Brief -- NY Statewide Hispanic Coalition v. NY Health Board (NY Supreme Court, Appellate)