What was Judge Tingling Thinking? The Invalidation of NYC’s 16 Ounce Portion Cap

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Yesterday, at the 11th hour, Judge Milton Tingling of the New York State Supreme Court invalidated New York City’s 16 ounce portion cap regulation, which was scheduled to go into effect today in food service establishments under the jurisdiction of the NYC Board of Health.

Mayor Michael Bloomberg has announced that the city will immediately file an appeal with the NYS Appellate Division. A similar chain of events occurred several years ago with the NYC menu labeling regulation. The courts eventually ruled in NYC’s favor and menu labeling was implemented successfully.

Michael Bulger, a graduate student in Food Studies at New York University, provided me with an excellent breakdown of Judge Tingling’s decision:

Judge Tingling said that in order for the NYC Board of Health (BoH) to regulate sugary drinks they must satisfy four criteria. Here’s what they are and why the judge felt they were not met:

1. The regulations can’t be based on economic, political, or social considerations. The judge thinks the sugary drink 16 oz cap rules are based on these considerations. He points to the fact that the rules only cover food service establishments. He suggests that the BoH’s failure to try to work with the NYS Department of Ag & Markets to extend portion control to grocery stores and 7-11’s means that the regulations are based on political considerations. He takes issue with the BoH’s factoring in the economic costs of obesity and related diseases.

2. The regulations shouldn’t be written on a “clean slate.” The judge thinks that the NYC Charter does grant the BoH power to ban food items from being sold in the name of public health. But he says that obesity and obesity related diseases are not the kind of “eminent threat” that the centuries old Charter authorizes the BoH to prevent.

3. The regulations can’t be acting on an area that the legislature has tried and failed to act upon. The judge sees the defeat of both soda taxes and the ban on SNAP purchases of soda as evidence that regulating sugary drinks has been rejected by the legislature. Therefore, he believes the BoH cannot issue regulations designed to limit sugary drink consumption.

4. The regulations must be written with the expertise and technical competence of the Board of Health. The judge agrees with the BoH on this one point. He thinks the Board did use its expertise and/or technical competence in considering and passing the sugary drink limits. However, the judge also says in his ruling that even if the BoH had the authority to regulate sugary drinks, he disagrees with their expert opinion that portion size limits are a good way to address obesity. Since consumers could purchase more than one 16 oz. sugary drink, or buy a Big Gulp at 7-11, the judge believes that defeats the purpose of the rule.

While I’m certainly not a legal expert, some of Judge Tingling’s reasoning strikes me as unsound — particularly when he disagrees with the BoH’s expert assessment that portion size limits are a good way to tackle the obesity epidemic; when he suggests that the regulations are based on political considerations; and, when he asserts that obesity and related chronic disease are not an eminent threat in the eyes of the NYC Charter.

Stay tuned. The next round will be very interesting.

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