Big Brother Takes a Bite Out of the Big Apple and Gets a Worm Can Any Government Body Regulate Portions?

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BIG BROTHER TAKES A BITE OUT OF THE BIG APPLE..., 55 S. Tex. L. Rev. 553

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

55 S. Tex. L. Rev. 553

South Texas Law Review

Spring, 2014

Comment

BIG BROTHER TAKES A BITE OUT OF THE BIG APPLE AND GETS

A WORM: CAN ANY GOVERNMENT BODY REGULATE PORTIONS?

Sara Jo Dunstana1

Copyright (c) 2012 South Texas Law Review, Inc.; Sara Jo Dunstan

I. Introduction 553

II. Summary of the Soda Ban and How It Would Have Applied 556

III. Big Soda Fights Back 558

A. The Board of Health's Violation of the Separation-of-Powers Doctrine 559

1. Boreali Factor One: An Exception-Riddled Regulation 5602. Boreali Factor Two: A Lack of Legislative Guidance 561

3. Boreali Factor Three: Public Debate and Legislative Failure 562

4. Boreali Factor Four: Expertise Required and Sufficiently Exercised 564

B. Soda Ban Was Arbitrary and Capricious, Lacked Rational Basis 565

IV. Analysis 567

A. Portion-Cap Laws Violate the “Dormat” Commerce Clause 567

1. Portion-Cap Laws Probably Nondiscriminatory 569

2. Interstate Commerce Burden Likely Exceeds Local Benefit 570

B. Withstanding Commerce Clause Attack, Portion-Cap Legislation Still Unconstitutional 574

C. The Solution: “Defensive Restauranting,” Facilitating Informed Choices, and Self-Regulation 579

V. Conclusion 581

I. Introduction

Americans are big; they are bigger than people in any other high-income nation.1

Thirty-three percent of American adults have

a body mass index of thirty or more, a number that indicates obesity.2

One-third of American adolescents are overweight,3

and it is estimated that eighty *554 percent of this group will grow up to become obese adults.4

Generally, obesity is seen

as a purely private behavior. 5 Government meddling into private affairs is not a new occurrence, but it has not always been

successful. 6 Tobacco litigation opened the door to the public examining the costs of private behavior and shifted the political

focus to the regulation of private behavior--obesity, drug abuse, and the right to die-- because of its impact on others. 7

Obesity can lead to conditions such as type 2 diabetes, stroke, heart disease, and certain types of cancer.8

Some scholars argue

that the cost of obesity does not affect the public, citing to research indicating that the obese statistically earn lower wages,

counterbalancing any insurance costs borne to others. 9 Also, quite morbidly, these scholars point out that the obese tend to die

sooner; therefore, the added costs of caring for the obese only appear higher because they accrue over a shorter period of time. 10

In addition, by dying sooner, the obese do not claim their fair share of Social Security benefits.11

However, most commentators

find the cost of obesity a cause for concern for the public, as it is estimated that obesity-related health problems will account for

one in every six dollars spent on healthcare by 2030.12

From an economic standpoint, both private citizens and public entities

would find some benefit in reducing American obesity rates and healthcare costs associated with the condition.13





The big question though is, what, if anything, should the government do about it? Although the U.S. Supreme Court has never

officially spoken on the issue, some justices have inferred that there is a fundamental “right to eat.” Justice Stephen Field once

wrote that a person's right to make and procure food is fundamental, and “an essential element of liberty.”14

Similarly, Justice

William Douglas argued that the unenumerated *555 fundamental rights of the Ninth Amendment included “one's taste for

food,” finding it to be “fundamental in our constitutional scheme--a scheme designed to keep government off the backs of

people.”15

More recently, Justice Antonin Scalia hinted at a right to eat in dicta.16

Whether food choice is a fundamental right

or not, the growing rate of American obesity makes it apparent that people generally want the freedom to choose what theyconsume, and how much, even if it is bad for them.

Assuming a right to eat exists, if the government attempts to regulate portions, a person's private interests must be weighed

against the public health and welfare. New York City Mayor Michael Bloomberg (Bloomberg or the Mayor) attempted such

a regulation when he pushed for the “Soda Ban,” an amendment to the New York City Health Code (the Code) that was later

approved by the New York Board of Health (BOH).17

While Bloomberg's effort to curb obesity in his city was certainly noble

(and novel), the so-called soda industry used the power of the courts to strike down the Soda Ban.18

Justice Tingling of the

New York Supreme Court found that the BOH exceeded its executive authority and intruded into the duties of the legislature,

creating a law in violation of the separation-of-powers doctrine. 19 Alternatively, Justice Tingling found that, even if the Mayor

and the BOH did not exceed their authority, the Soda Ban was arbitrary and capricious, and thus could not stand. 20

While the Mayor's attempt to cap the portion sizes of soda was ultimately defeated, the possibility remains that governmental

bodies will continue to make similar attempts to fight obesity through the regulation of foods with questionable nutritional value.

In 2011, the City of Cleveland, Ohio, passed a municipal ordinance banning “foods containing industrially-produced trans fat”

from being served in restaurants.21

While the City successfully argued that a subsequently passed state law purporting to *556

preempt the ordinance violated the City's home rule and police powers,22

no one has come forward to challenge the City's

authority to pass the substantive aspect of the ordinance. Prior to Cleveland, the cities of New York and Baltimore passed similar

trans-fat ordinances. 23 While these ordinances are not portion caps, and this Comment does not address whether authority

exists to pass them, this three-city trend of controlling public consumption through statutory bans of trans fat is arguably leading

governmental bodies down a slippery slope to regulating portions in the name of public health. For example, in an effort to

curb childhood obesity, San Francisco has banned toys in Happy Meals if the meal contains over six hundred calories, which

is essentially portion-cap legislation in disguise. 24

In an effort to nip this nanny-state trend in the bud, this Comment urges that no government body--local, state, or federal--has

the authority to enact a law that limits the portion sizes of food or drink in the United States. First, this Comment will explain

in detail the Mayor's proposed ban and how it would have applied. Second, it will summarize the arguments that were in favor

of and ultimately led to the court striking down the law. Third, this Comment will offer support for the proposition that state

legislatures similarly do not have the authority to enact a ban on portions under their police power. Fourth, this Comment will

address the unconstitutionality of a portion ban, should a court find that Congress or state legislatures have the authority to pass

such a law. Finally, it will offer alternative solutions to fight obesity in America.

II. Summary of the Soda Ban and How It Would Have Applied

On May 31, 2012, Mayor Bloomberg proposed to institute a Soda Ban preventing “food service establishments” from serving

“sugary drinks” in cups or containers exceeding sixteen ounces.25

The Mayor asserted that New York City residents were

disproportionately obese and something needed to be done about it.26

In fact, he said in an interview, “I think that's what the

public wants the mayor to do.”27





*557 In September 2012, the BOH adopted the Mayor's proposed amendment to section 81 of the Code, which would have

taken effect on March 12, 2013.28

Under the Soda Ban, food service establishments could not provide cups or containers over

sixteen ounces for sugary drinks.29

Sugary drinks were defined as follows:

[A] carbonated or non-carbonated beverage that:

(A) is non-alcoholic;

(B) is sweetened by the manufacturer or establishment with sugar or another caloric sweetener;

(C) has greater than 25 calories per 8 fluid ounces of beverage; and

(D) does not contain more than 50 percent of milk or milk substitute by volume as an ingredient. 30

The BOH planned to assess a fine of up to two hundred dollars against any foo d service establishment found violating the

Soda Ban.31

Under section 81.03(s) of the Code, a food service establishment is defined as “a place where food is provided for individual

portion service directly to the consumer whether such food is provided free of charge or sold, and whether consumption

occurs on or off the premises or is provided from a pushcart, stand or vehicle.”32

At first glance, it appears as though this

definition would apply to every bar, movie theater, convenience store, grocery store, restaurant, newsstand, vending machine,

and food-service stand in the city. In its notice of the Soda Ban, the BOH claimed that “[t]he Department enforces provisions

of the Health Code, the State Sanitary Code, Public Health Law and other applicable laws relating to food served directly

to consumers throughout New York City.”33

However, the BOH's enforcement jurisdiction is limited by a memorandum

of understanding with the New York State Department of Agriculture and Markets.34

Under the memorandum, the BOH is

responsible for “the inspection and regulation of places where food is consumed on the premises or sold ready-to-eat for off-

premises consumption including the site at which individual portions *558 are provided.” 35 The department of agriculture and

markets is responsible for “the inspection and regulation of places where food is processed or manufactured, food warehouses,

wholesale food distributors[,] and retail food stores.”36

Where the jurisdiction of the departments overlap, the department of

agriculture “shall have jurisdiction over all operations of the establishment unless sales of food for consumption on the premises

or ready-to-eat for off-premises consumption . . . exceeds fifty percent of total annual dollar receipts[,]”37

in which case the

BOH regulates the establishment. Only establishments that receive inspection grades from the BOH would have been subject

to the amendment.38

Thus, the Soda Ban would have included movie theaters, over twenty thousand restaurants, stadiums,

arenas, coffee shops, bars, and food carts because they sell food for consumption on the premises or, in the case of food carts,

in a form that is ready-to-eat off premises.39

The Soda Ban would not have applied to grocery stores because they are retail

food stores regulated by the department of agriculture, not the BOH.40

Similarly, convenience stores would have been exempt

because they are considered “food stores,” which are subject to regulation by the department of agriculture, and their sales of

food typically do not exceed fifty percent of total annual dollar receipts. 41

III. Big Soda Fights Back

On October 11, 2012, the American Beverage Association, along with grocery, restaurant, and theater associations (collectively,

the petitioners) filed suit in the New York Supreme Court, New York County, against the New York City Department of Health

and Mental Hygiene, the New York Board of Health, and Dr. Thomas Farley in his official capacity as the *559 Commissioner

of the Department (collectively, the respondents).42

The petitioners sought a permanent injunction and declaration, prohibiting





the respondents from enforcing the ban and declaring that the respondents had overstepped their authority. 43 Alternatively, the

petitioners sought a declaration that the New York City Charter (the Charter) provisions under which the respondents claimed

their authority to create the Soda Ban violated the separation-of-powers doctrine.44

The petitioners also alleged that the Soda

Ban was arbitrary and capricious--so that even if the respondents had the authority to implement the law, it was an abuse of

discretion--and requested that the court enjoin its enforcement.45

The petitioners asked the court to rule by December, citing

the need for a reasonable time for those in the beverage industry to re-tool facilities and equipment to comply with the Soda

Ban, should the court uphold it. 46 The court, however, waited until the eleventh hour to answer the petitioners' prayer. On

March 11, 2013, only one day before the Soda Ban would have taken effect, Justice Tingling of the New York Supreme Court

struck it down.47

A. The Board of Health's Violation of the Separation-of-Powers Doctrine

Justice Tingling reviewed the Soda Ban under the Boreali factors, a set of factors that New York courts use to determine whether

an administrative body has overstepped its bounds and violated the separation-of-powers doctrine by trespassing on legislative

jurisdiction.48

The four Boreali factors are whether the administrative agency (1) created a regulatory scheme fraught with

exceptions solely based on social and economic concerns; (2) wrote on “a clean slate,” creating an all-encompassing set of

rules without the aid of the legislature, instead of merely adding fine points to comprehensive legislation that described thegeneral policies it would implement; (3) implemented rules in an area of the law where, “in the face of substantial public debate

and vigorous lobbying by a variety of interested factions,” the legislative branch had failed to reach agreement; and (4) *560

lacked any technical or special expertise. 49 Any factor standing alone is not enough to declare that the separation-of-po wers

doctrine has been breached. 50 Rather, when viewed in totality, the court considers whether the factors “paint a portrait of an

agency that improperly assumed for itself open-ended discretion to choose its ends.” 51 Justice Tingling concluded that the

BOH's attempt to enact the Soda Ban violated three of the four Boreali factors.52

1. Boreali Factor One: An Exception-Riddled Regulation

The first Boreali factor looks at whether an administrative agency has “constructed a regulatory scheme laden with exceptions

based solely upon economic and social concerns.”53

If so, the agency has violated the first Boreali factor, because “[s]triking

the proper balance among health concerns, cost[,] and privacy interests . . . is a uniquely legislative function.”54

The petitioners

alleged that the Soda Ban exempted grocery stores, markets, and convenience stores on its face because of the Memorandum

of Understanding between the BOH and the Department of Agriculture and Markets. 55 As previously noted, the memorandum

gives the department of agriculture jurisdiction over these facilities.56

The respondents argued that the Soda Ban was based

solely on health concerns, and that the only reason those establishments were exempt was because of the memorandum.57

Justice Tingling decided that the memorandum required only that the respondents coordinate with the department of agriculture;

the memorandum did not independently limit the BOH's authority to regulate those establishments. 58 The court noted that

the respondents made no effort to coordinate with the department of agriculture before enacting the Soda Ban. 59 The court

concluded that this failure to coordinate “on what is termed a chronic epidemic” demonstrated that the respondents weighed

*561 their “stated goal of health promotion against political considerations.”60

The court also found that the “statement of the

financial costs related to the chronic epidemic” in the Soda Ban's Statement of Basis and Purpose showed additional evidence

that the respondents were trying to strike a balance between economic considerations and looking after the public's health. 61

Therefore, Justice Tingling found that the respondents violated the first Boreali factor. 62

2. Boreali Factor Two: A Lack of Legislative Guidance





The second Boreali factor considers whether an agency created a regulation on a “clean slate,” or whether it “merely fill[ed]

in the details of broad legislation describing the over-all policies to be implemented.”63

While administrative agencies do not

have inherent legislative power, they are constitutionally permitted to exercise their authority “by promulgating rules within

the boundaries of [their] legislative delegation.” 64

The Charter vests the BOH with limited legislative power in the city. 65 Under the Charter, the department of health “shallhave power to adopt local laws which it deems appropriate . . . for the preservation of the public health, comfort, peace[,] and

prosperity of the city . . . .” 66 It also allows the department to “effectuate the purposes and provisions of [the C] harter or of

the other laws relating to the city.” 67 The New York constitution does not prohibit the legislature from delegating its power

to an agency, so long as the legislature establishes “reasonable safeguards and standards . . . to administer the law as enacted

by the [l]egislature.”68

The respondents argued that the Charter granted the BOH authority to regulate all health matters within the city under sections

556, 558, and 1043.69

Section 556 allows the BOH to supervise the control of chronic disease.70

It also authorizes the BOH

to “supervise and regulate the food *562 and drug supply of the city and other businesses and activities affecting public health

in the city, and ensure that such businesses and activities are conducted in a manner consistent with the public interest and bypersons with good character, honesty[,] and integrity.” 71 Section 1043 authorizes city agencies to “adopt rules necessary to

carry out the powers and duties delegated to it by or pursuant to federal, state[,] or local law.” 72 New York's highest court

has stated that the BOH's authority under its enabling statute “must be deemed limited by its role as an administrative, rather

than a legislative, body.”73

After extensively examining the history of the Charter and all of its amendments from 1698 to the present, Justice Tingling

found that the Charter did not grant the BOH the vast and unchecked authority required to create, mandate, and enforce the

Soda Ban.74

The court explained that while the Charter granted the BOH broad powers, every major amendment to the

Charter that increased the BOH's authority “occurred under times of increased diseases.”75

The amendment history of the

Charter reveals that the legislature's intent was to allow the BOH to provide regulations for the protection of the city's citizens

from “communicable, infectious, and pestilent diseases.” 76 The court concluded that although the BOH had authority to

regulate-- in a supervisory role--the city's food supply when it concerned the public health, the history of the Charter elucidated

precisely under what circumstance the BOH could take this step: “[W]hen the City is facing eminent danger due to disease.”77

Accordingly, the court found that the BOH violated the second Boreali factor.78

3. Boreali Factor Three: Public Debate and Legislative Failure

The third Boreali factor considers whether the legislature has tried and failed “to reach agreement in the face of substantial public

debate and vigorous lobbying by a variety of interested factions.” 79 An agency cannot “intercede[] to perform a legislative

function [that] the . . . [l] egislature *563 could not, or would not, perform.” 80 A court will attach more persuasive weight to

legislative failure than it will legislative inaction when examining this factor.81

Undeniably, the legislative branch of New York has tried and failed to come to an agreement in this area. In 2011, the city

council introduced a resolution asking the United States Department of Agriculture to authorize the city to add sugary drinks

to the list of goods that cannot be purchased with food stamps.82

In 2012, the city council introduced two more resolutions

regarding sugary drinks.83

The first resolution requested that the Food and Drug Administration (FDA) require warning labels





on sugar-sweetened drinks, while the second urged the New York State Legislature to enact a law that would add an excise

tax on sugary drinks.84

In 2010, a bill was introduced to the New York State Assembly that would have prohibited the use of food stamps to buy food

that is “not nutritional.” 85 The following year, a bill was introduced that would have authorized additional taxes on sweets

and snacks, including soda.86

In 2012, another bill was introduced that would have prohibited stores from displaying candy

or soda at the checkout counter. 87 Again in 2012, a bill was introduced that would have banned food service establishments

residing on government property from selling sugary drinks, and also would *564 have eliminated vending machines from

government property.88

None of these resolutions or bills passed.89

The respondents tried to distinguish the Soda Ban by arguing that the aforementioned legislatures never considered a bill on

capping portion sizes and, therefore, there was no evidence of legislative failure for the court to consider.90

Justice Tingling

reasoned that the “[f]ailure to think, or list or consider, any and all possibilities, would justify the usurpation by an administrative

agency of a legislatively mandated function.” 91 The court found the respondents' argument irrational, and decided that “[a]

ddressing the obesity issue as it relates to sugar-sweetened drinks . . . is the subject of past and ongoing debate within the [c]ity

and [s]tate legislatures.”92

Therefore, the court found that the respondents violated the third Boreali factor.93

4. Boreali Factor Four: Expertise Required and Sufficiently Exercised

The final Boreali factor determines whether an agency required expertise or technical competence to enact a regulation, and, if

so, whether it exercised such expertise or technical competence in developing the regulation.94

This factor is not articulated as

clearly as the others. New York's highest court once explained “[t]he judicial function is exhausted with the discovery that the

relation between means and end is not wholly vain and fanciful, an illusory pretense.” 95 Justice Tingling said that an agency

could demonstrate the development requirement “by the exercise of the requisite expertise in a field prior to the passage of a

regulation,” and that, “upon a challenge to a regulation, be able to cite where and how same was exercised.”96

The respondents

claimed that the memorandum the BOH published after a public hearing on the Soda Ban evidenced the BOH's exercise of

its expertise.97

The court found this argument to have some *565 merit.98

The parties did not dispute that the Mayor's

office wrote and proposed the Soda Ban to the BOH or that the BOH enacted it without any substantive changes. 99 The

respondents could not point to any board member who exercised any expertise or competence regarding the rule.100

However,

Justice Tingling concluded that the BOH's acceptance of the Soda Ban as written spoke only to the BOH's “agreement with

the language of the regulation, not its failure to exercise its expertise or technical competence.”101

Therefore, the court found

that the respondents satisfied the fourth Boreali factor.102

After examining all of the Boreali factors, Justice Tingling decided that the BOH violated the separation-of-powers doctrine.103

The court reasoned that if it upheld the Soda Ban, it would “create an administrative Leviathan” and would “eviscerate” the

separation-of-powers doctrine.104

“Such an evisceration,” the court summarized, “has the potential to be more troubling than

sugar sweetened beverages.”105

B. Soda Ban Was Arbitrary and Capricious, Lacked Rational Basis

Even if the court had found that the BOH's approval of the amendment was within its power, the amendment itself was fatally

flawed. Under New York law, “an administrative regulation will be upheld only if it has a rational basis, and is not unreasonable,

arbitrary[,] or capricious.”106

The arbitrary-or-capricious test looks at “whether a particular action should have been taken . . .





and whether the administrative action is without foundation in fact.” 107 Further, when a regulation offers no rational reason for

a distinction in treatment between two similar groups, New York courts find that the regulation is arbitrary and capricious. 108

*566 As explained in Part II, the groups that would have been affected by this ban were primarily movie theaters, arenas,

and restaurants. Grocery stores, convenience stores, and newsstands could have continued to sell sugary drinks over sixteen

ounces. As the Soda Ban was written, a person could have been denied a large cup of coffee in a Dunkin' Donuts because

Dunkin' Donuts employees add the sugar for the customer. 109 However, that same person could have gone to the 7-Eleven nextdoor and purchased a Double Big Gulp, with three times the amount of sugar and calories, because the BOH lacks jurisdiction

over it. Similarly, a person could have ordered a 16.2 ounce M & M McFlurry at McDonald's, with a whopping 930 calories,

because the Soda Ban exempted items containing more than fifty percent milk.110

Meanwhile, that same person could not

have ordered a medium (21 ounces) Sprite containing 200 calories.111

Further, a person could not have ordered a black coffee

with extra sugar at Starbucks, but could have ordered a plain black coffee and immediately added all the sugar he wanted, three

feet away, at the self-service station.

Under New York law, a court must look only to the reasons cited by an agency as its support for a regulation to determine

whether the regulation is arbitrary and capricious.112

In its amendment notice, the BOH cited several reasons to regulate soda

sizes.113

For example, it asserted that offering soda in smaller sizes would get the public accustomed to smaller portions and,thus, would better enable them to understand proper portions and portion control. 114 However, because the Soda Ban was so

rife with contradictions and inconsistencies, it could not possibly have achieved its goals.

Justice Tingling came to this same conclusion in his order enjoining the respondents from enforcing the Soda Ban.115

The court

explained that an agency must first demonstrate that it has a reasonable basis for creating a regulation.116

The court accepted

the respondents' stated premise for enacting the Soda Ban--” to address the rising obesity rate in New York *567 City”--

and found it to be reasonable.117

The court afforded the respondents “every degree of judicial deference in promulgating the

Rule,” but found that it was “nevertheless f raught with arbitrary and capricious consequences.”118

Justice Tingling reasoned

that the Soda Ban was arbitrary and capricious because it only affected some food establishments as opposed to of all of them;

it exempted beverages with substantially higher calories and more sugar than soda on suspect grounds; and “the loopholesinherent in the Rule, including but not limited to no limitations on re-fills, defeat[ed] and/or serve[d] to gut the purpose of

the Rule.”119

Accordingly, Justice Tingling declared the Soda Ban invalid and permanently enjoined the respondents from

enforcing it.120

When the respondents appealed, the New York Supreme Court and the Court of Appeals both affirmed Justice

Tingling's judgment.121

Jon Stewart of The Daily Show was spot-on when he opined that the Soda Ban “combine[d] the

draconian government overreach people love with the probable lack of results they expect.”122

IV. Analysis

“This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the

economy, . . . has as its corollary that the states are not separable economic units.” 123 Clearly, as Justice Tingling concluded,

a local regulatory agency as part of the executive branch does not have the authority to put into effect such a cap on portion

sizes. This Comment argues that state and federal legislative bodies also lack the power to do so.

A. Portion-Cap Laws Violate the “Dormant” Commerce Clause

States legislatures cannot enact a portion cap because it would violate the “dormant” Commerce Clause, treading on an area of

law reserved for Congress. The Commerce Clause grants Congress the power “[t]o regulate Commerce with foreign Nations,





and among the several States, and with the *568 Indian Tribes.” 124 The Tenth Amendment guarantees, “The powers not

delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to

the people.”125

The “dormant” Commerce Clause is a judicial interpretation of the dormant or implicit aspect of the Commerce

Clause and limits a state's power to enact legislation, even in areas where Congress is silent.126

When analyzing whether a state has enacted a law violative of the dormant Commerce Clause, courts first determine whether the

law discriminates against interstate commerce. 127 Laws that discriminate against interstate commerce are per se invalid. 128

If a court determines that a law is not discriminatory, it uses a balancing approach first introduced in Pike v. Bruce Church,

Inc.129

Under the Pike test, a nondiscriminatory state law that only incidentally affects interstate commerce will be held valid

unless “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits” derived from the

law. 130 The line between a per se invalid discriminatory law and one subject to the Pike balancing approach is not clear. 131

Regardless of the situation, the global effect on both local and interstate commerce is the primary consideration.132

Although the dormant Commerce Clause ordinarily applies to laws that burden economic interests, courts have applied it to laws

where the sole purpose is to protect public health and safety. 133 This Comment adopts the position that a state-enacted portion-

cap law would violate the dormant Commerce Clause because, even if a state wrote a portion-cap law that is not discriminatory,

it would lack local benefit entirely. Thus, any burden on interstate commerce would be clearly excessive.

*569 1. Portion-Cap Laws Probably Nondiscriminatory

Generally, a court will invalidate a state statute that regulates or discriminates against interstate commerce directly, or one that

does so indirectly through favoring that state's economic interests over out-of-state-interests. 134 Where the court finds that a

statute discriminates, it must be invalidated unless the proponents of it can demonstrate that reasonable and nondiscriminatory

alternatives would fail to advance a legitimate local purpose adequately.135

A statute may discriminate in one of two ways:

on its face or in its effect.136

A statute is facially neutral when “there is no explicit distinction between intrastate commerce

and interstate commerce.”137

A differential burden on interstate commerce--” from wholesaler to retailer to consumer”--will

be held invalid “because a burden placed at any point will result in a disadvantage to the out-of-state producer.” 138

A court would likely find a state portion-cap statute facially neutral unless the cap only applies to a specific product made

outside the state while exempting the same product made within the state.139

This is unlikely to occur because the purpose of

such a statute would fail before one could finish reading it. For instance, if the purpose of a portion cap is to reduce the rise of

obesity in a state, the statute would not serve that purpose where it capped portion sizes on national chains, such as 7-Eleven

and McDonald's, but exempted in-state chains or mom-and-pop stores.

However, courts will still find a facially neutral statute discriminatory where it discriminates against interstate commerce in its

effect.140

Where a statute discriminates in its effect, “the burden falls on the State to justify [the discrimination] both in terms of

the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to *570 preserve

the local interests at stake.”141

A portion-cap statute could be found discriminatory in its effect, depending on the subject matter

of the portion cap. However, the only hypothetical this author could think of is solely that--a hypothetical. For the hypothetical

to work, one must suspend reality and imagine that Dublin, Texas is the sole place of manufacture of Dr Pepper. One must also

imagine that Dr Pepper has a patent on aspartame. In this hypothetical, the Texas legislature adopts a portion cap on all soft

drinks in an effort to curb obesity and promote the health and welfare of its citizens. Exempted from this portion cap are all

drinks in which sugar is substituted with aspartame (i.e., Diet Dr Pepper). This law is not discriminatory on its face because

it does not explicitly exempt in-state businesses to the disadvantage of out-of-state businesses. Further, the exemption does

not serve to defeat the purpose of the statute because aspartame is a low-calorie substitute for sugar.142

However, the statute





would be discriminatory in its effect because the in-state business could sell a higher volume of its product without competition

from other businesses, and “nondiscriminatory alternatives would seem likely to fulfill the State's purported legitimate local

purpose more effectively.”143

As illustrated, a state legislature would probably not enact a facially discriminatory portion-cap law because it would fail of

its essential purpose to promote health and welfare. It is also unlikely that a legislature could pass a portion-cap law that

discriminates against out-of-state residents while benefitting those residing in-state, as evidenced by the above hypothetical

loaded with fanciful, unlikely exceptions. In addition, “a regulation is more likely to be characterized as a discrimination of

some kind if it is discriminatory in purpose or on the face than if it is solely in effect[[,]”144

which further weakens an already

weak argument. Fortunately, all is not lost.

2. Interstate Commerce Burden Likely Exceeds Local Benefit

It must be conceded, as it just was, that a discriminatory portion-cap law is difficult to postulate. Therefore, it is necessary

to examine portion-cap laws under the Pike balancing approach, 145 which offers the strongest *571 and most compelling

argument against state control in the area of portion regulation.

In conferring upon Congress the regulation of commerce, [the Commerce Clause] was never intended to cut the States off from

legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affectthe commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without

constituting a regulation of it, within the meaning of the Constitution.146

The purpose of a portion-cap law would undoubtedly relate to the state's police power, which enables it to legislate on subjects

regarding the health of its citizens; otherwise, a court would likely hold that it is an attempt to regulate commerce, which the

Constitution reserves to Congress. For this reason, this Comment assumes that a state's purpose in enacting a portion cap would

be to curb obesity in the state, thereby legislating to promote the health of its citizens. Absent this purpose, a state portion-cap

law would be a prohibited attempt to regulate commerce, requiring no further inquiry.

However, a portion-cap law would almost always affect interstate commerce indirectly, regardless of its purpose. For example,

major-brand soda manufacturers do not have operations in every state.147

The bottle manufacturers in a non-portion-capped

state are affected by a portion-cap law in another state, and must comply with the cap in order to sell its product there. This

is an indirect effect on interstate commerce derived from the portion-cap law. Under the Pike balancing test, when a state

law “regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only

incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local

benefits.” 148 While promoting public health and safety is a legitimate purpose, it does not necessarily protect a state law “from

Commerce Clause attack.” 149

The state's interest in enacting a portion cap would be legitimate. However, the burden on interstate commerce would exceed

the local benefit. Capping portions would just lead people to buy additional quantities of the portion-capped item, which doesnothing to promote public health or prevent obesity. In essence, the local benefit would be completely *572 lost. There would

be no benefit at all. Surely, even the slightest damper on interstate commerce mandates a finding that the burden on interstate

commerce clearly exceeds the local benefit where the benefit is nonexistent.

Even if a court were to find some benefit to a portion cap, the cause of obesity is clearly not one particular item of food or

drink, nor is the cause diet alone. The burden on interstate commerce would still exceed the putative local benefit of a portion-

cap law because of the disadvantage it would place on the companies supplying items that are subject to the cap compared to

those companies that do not. Taking the Soda Ban as an example, had the legislature passed the law, as opposed to the BOH, it

would have put soda manufacturers at a significant disadvantage compared to manufacturers of, for example, chocolate milk.





Eight ounces of chocolate milk contain approximately two hundred twenty-six calories. 150 Eight ounces of Coca-Cola contain

only ninety-seven calories. 151 While chocolate milk admittedly contains some nutritional value, the distinction between these

two items is completely arbitrary when the goal of the legislation is to fight obesity. The law would indirectly affect interstate

commerce because it would place Coca-Cola at a disadvantage by forcing the company to sell its product in limited volume.

While the makers of chocolate milk could sell its product by the gallon in a movie theater, a person could only purchase Coke

in a small bottle or cup.

The most compelling argument against states regulating portions sizes is that the regulation would directly affect interstate

commerce. “[A] state may not impose a burden which materially affects interstate commerce in an area where uniformity of

regulation is necessary.”152

If an individual state is permitted to regulate the portion sizes of packaged goods, it could create

a result similar to that reached in the case Brown-Forman Distillers Corp. v. New York State Liquor Authority. In Brown-

Forman, the State of New York required that companies selling liquor to wholesalers in the state do so at a price not higher than

the price such companies charged in other states.153

In passing this legislation, the state, in effect, regulated the out-of-state

sales of liquor by forcing the out-of-state companies to comply with this law; the companies had to ask permission from New

York before it charged a lower price to wholesalers in another state.154

The U.S. Supreme Court found that the law violated the

dormant Commerce Clause because *573 “[f]orcing a merchant to seek regulatory approval in one State before undertaking

a transaction in another directly regulates interstate commerce.” 155

If the law allows states to pass regulations on portion sizes of any food or drink, it will create the same result. States regulating

sizes will force food companies to manufacture the lowest-allowable portion of its product, mandated by the state with the

lowest cap. States creating portion-cap laws “multipl[y] the likelihood that a seller will be subjected to inconsistent obligations

in different States.”156

It is obvious that beverage companies will have to change the size of their bottles in order to comply

with a portion size limitation. This applies to any portion ban on foods controlled by states. Each state may come up with a

different size for its maximum allowable portion. This directly affects interstate commerce because, like in Brown-Forman,

where the New York State Liquor Authority made distillers charge the lowest price out of all the states, the state with the lowest

portion size will be controlling the portion sizes in other states in one of two ways. First, the state with the lowest allowable size

will force other states to pass regulations at or under that size in order for their own laws to have any effect on food packaging.

Essentially, these other states would be forced to “abandon regulatory goals” because any portion cap higher than that of thestate with the lowest cap would be rendered meaningless. Meanwhile, a citizen of one of these states would only have the

opportunity to purchase portions lower than that which his state felt was necessary to fight obesity. 157 Second, the food or

beverage industry affected by multiple portion-cap laws in several states will comply with the state with the lowest cap for

all of its sales to avoid inconsistent obligations, because it would not be cost-effective for the industry to re-tool machinery

to make fifty different package sizes.

Some may claim that when interstate commerce analysis is conducted, the direct-effect argument only applies where there

is an economic impact on other states. Indeed, the regulation in Brown-Forman impacted commerce in other states because

of New York's pricing restrictions, not a regulation on packaging. But this argument fails when one returns to the purpose

of a portion-cap law. The Supreme Court has stated that where there is an “absence of congressional action to set uniform

standards, some burdens associated with state safety regulations must be tolerated.” 158 Since *574 safety and health are both

within a state's police power,159

it is likely the Court would say the same thing about state health regulations. But where the

state's “safety interest has been found to be illusory . . . the state law cannot be harmonized with the Commerce Clause.”160

“Arbitrary” and “illusory” are not necessarily the same thing. However, regulations designed to promote public health or safety

may “nevertheless . . . further the purpose so marginally, and interfere with commerce so substantially, as to be invalid under

the Commerce Clause.”161

The necessary goal of a portion-cap law, in order for a state to pass one under its police power, is

to promote public health and to fight obesity. Capping portions on a particular item, while not restricting multiple sales of that

item or failing to place caps on other non-nutritional items, furthers the purpose of promoting public health only marginally at





best. As illustrated, the same law would interfere with sales of the item in other locales substantially. Thus, any state legislation

creating a portion cap violates the dormant Commerce Clause because the burden imposed on commerce would be “clearly

excessive in relation to the putative local benefits.”162

B. Withstanding Commerce Clause Attack, Portion-Cap Legislation Still Unconstitutional

“Although activities may be intrastate in character when separately considered, if they have such a close and substantial relationto interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions,

Congress cannot be denied the power to exercise that control.”163

The purpose of Commerce Clause examinations of state

laws is to determine whether a state has overstepped its bounds into Congress' territory. By arguing that a state has overstepped

its authority by enacting a portion-cap law, one necessarily implies that Congress holds the power to pass such a regulation

under the Commerce Clause. However, Congress' commerce power is naturally limited to the extent that it can pass a law under

the Commerce Clause only if the law does not violate any other constitutional right. Furthermore, even if a court were to find

portion-cap legislation to be a valid exercise of a state's police *575 power, no governmental body can violate the Constitution

when exercising its powers.

There exists no direct constitutional law, statutory enactments, case law, or any other authority that stands for the proposition

that there exists a fundamental right to consume food in whatever quantity or portion one wishes. This author surmises this to

be the case because the proposition is blatantly obvious, an extremely novel concept, or both.164

However, some persuasive

case law does exist indicating that a portion cap would violate the constitutional rights of the businesses selling food.

Three states--Oregon, California, and Michigan--have had companies assert constitutional grounds to challenge food-packaging

requirements that can be analogized successfully to portion-cap legislation. In Oregon, bottle and can manufacturers and

distributors in the soft drink industry (collectively, the plaintiffs) sued the state of Oregon to enjoin enforcement of the “Bottle

Bill.”165

The Bottle Bill banned the sale of pull-top cans in which the pull-top wholly separated from the can; it also mandated

that retailers and distributors accept returnable bottles from consumers.166

The legislative purpose of the Bottle Bill was to

reduce litter in Oregon and to prevent injuries to people and animals resulting from discarded pull-top tabs.167

The plaintiffs

challenged the statute under the Commerce Clause and the Equal Protection and Due Process clauses of the Fourteenth

Amendment.168

The plaintiffs argued that the Bottle Bill would have “severe economic effects upon their elements of the

beverage industry.” 169

The court found the Bottle Bill to be a valid exercise of the state's police power.170

The court then quickly dismissed the

plaintiffs' due-process challenge, explaining that “[t]he United States Supreme Court has not struck down economic legislation

on the basis of substantive due *576 process since the Depression.”171

The court also found for the defendants on the plaintiffs'

equal-protection argument. 172 It decided that the plaintiffs' equal-protection rights are subject to rational-basis scrutiny and

that the pull-top ban was reasonably calculated to reduce litter, minimize injury to people who might step on the pull tops, and

reduce the chance that animals would eat the pull tops.173

Since the Bottle Bill placed a monetary value on bottles, the court

further reasoned that it encouraged people to return the bottles to a store; thus, the Bottle Bill was reasonably calculated “to

diminish the amount of solid waste and the amount of litter with which the state is required to deal.”174

Although the Oregon plaintiffs lost their case on all counts, the case is distinguishable from the portion-cap legislation attempted

in New York City. In particular, portion-cap legislation on soft drinks, for the purpose of curbing obesity, is a violation of the

Equal Protection Clause. The Fourteenth Amendment does not forbid states to create laws that affect different groups of citizens

differently; rather, it gives states an immense scope of discretion to do so. 175 “The constitutional safeguard is offended only

if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.”176

The proposition that





making bottles returnable will create less litter is rational. The deposit a consumer receives for returning bottles offers him an

incentive to avoid littering. If he does litter, that incentive passes to any citizen in need of money, who can collect the littered

bottles for profit. This was a stated purpose of the Oregon statute.177

Further, the Oregon legislature banned all pull-top cans,

regardless of their contents, which rationally relates to preventing injury resulting from discarded pull-tops.178

In contrast, two sixteen-ounce bottles of soda do not curb obesity any more than one thirty-two-ounce container. Additionally,

when a legislature bans a twenty-ounce bottle of Sprite, but it exempts a twenty-ounce Frappuccino because the Frappuccinocontains more than fifty percent milk--yet contains far more calories--it creates a classification that “rests on grounds wholly

irrelevant to the achievement of the State's objective.” 179 Finally, when a portion-cap law exempts certain retailers, like grocery

*577 stores, and does not account for free refills in restaurants, the law creates wholly arbitrary classifications that directly

undermine the state's purpose of fighting obesity. The only way for portion-cap legislation to achieve its goals is to institute

food rationing, a practice the United States has not instituted since World War II. 180

California faced a case with essentially identical facts and legal arguments as those in Oregon.181

The California plaintiffs

argued that their equal protections rights were violated because the returnable bottle legislation “applie[d] only to soft drink

and malt beverage containers but not to the containers of other beverages or food.”182

The court dismissed this argument and

explained that “[i]t is no requirement of equal-protection that all evils of the same genus be eradicated or none at all.”183

Whilesome may surmise that this offers a valid counterargument to this author's above equal-protection analysis, the California court

also explained that “those challenging the legislative judgment must convince the court that the legislative facts on which the

classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.”184

The

court found that the plaintiffs failed this burden and stated, “Certainly, some of the returned nonrefillables would otherwise

become litter. Thus, the effect of the ordinance should be to reduce litter.” 185

The distinguishing characteristic between the California case and a portion-cap law is that no governmental decisionmaker could

reasonably maintain that a twenty-ounce soft drink purchased in an exempt grocery store somehow contains fewer calories than

one purchased at a movie theater, or that two ten-ounce sodas contain fewer calories than one twenty-ounce soda. Further, a

legislature could not possibly assert that a drink with twice the calories of soda but containing fifty percent milk would cause

someone to pack on fewer pounds. These classifications make absolutely no sense in relation to a portion cap's ultimate goal;

the ordinance would not reduce obesity. Thus, the classifications would violate the equal-protection rights of the businesses

subject to the cap.

Portion-cap legislation also violates the constitutional right to do business secured under the Due Process Clause. In Michigan,

a statute banned the sale of milk in containers greater than one-half gallon, while *578 another statute allowed milk to

be packaged in containers greater than three gallons.186

Grocers Dairy sued the Director of the Michigan Department of

Agriculture.187

The issue in the case was whether “the absolute prohibition of the sale of milk in one-gallon containers [was]

contrary to the constitutional guarantees of due process of law under the . . . Federal Constitution[].” 188 The legislature's

concern was that housewives might want to transfer the milk from gallon containers into smaller, easier-to-manage receptacles,

thereby increasing the risk of milk contamination; in essence, the purpose of the ban on gallon containers was to protectthe public health.

189 Another section of the statute, however, permitted the sale of milk in containers of three gallons or

more.190

The court explained that while engaging in business is a constitutional right, it is nonetheless subject to a state's

police power, under which a state is authorized to prevent fraud and protect public health and general welfare.191

However,

the court continued, when a state exercises its police power, “there must be not only a public welfare to be conserved or public

wrong to be corrected, but there must be also a reasonable relation between the remedy adopted and the public purpose.”192

The court quickly concluded that the regulation, as applied to Grocers Dairy, was “unreasonable and capricious and le[]d to the

inevitable conclusion that there is no reasonable relationship between the public purpose and the remedy adopted.”193

Finding





it capricious, the court decided that the statute prohibiting milk sold in gallon containers could not survive under the Fourteenth

Amendment's Due Process Clause because it violated the constitutional right to do business.194

It is likely that a court considering a portion-cap law similar to the one in New York City would also conclude that the law

violated the Due Process Clause because of its arbitrary and capricious nature. Dairy Grocers successfully argued that the gallon

ban statute was arbitrary and capricious because its stated purpose was to prevent milk contamination through transferring the

milk from one container to another.

195

However, the same statute allowed milk sales in containers over three gallons, whichmeant that *579 it failed of its essential purpose.

196 Certainly, if a housewife desired to transfer one gallon of milk into

smaller containers, she would have desired to do the same with a three-gallon container. Therefore, the remedy adopted did

not bear a reasonable relationship to the statute's stated purpose. Similarly, the New York City law capped portions at sixteen

ounces for the purpose of curtailing rising obesity rates, yet it did not apply to everyone, nor did it prevent people from buying a

quantity of soda in two separate containers equal to the amount the portion cap prohibited in one container. Therefore, a portion-

cap statute like the Soda Ban enacted by any legislative body would probably not survive a due-process analysis.

C. The Solution: “Defensive Restauranting,” Facilitating Informed Choices, and Self-Regulation

Aside from constitutional concerns, the overwhelming problem with allowing a legislative body to enact a portion ban, simply

stated, is the following: If the ban leads to a decrease in obesity, more items will be legislatively capped, with the excuse that

the initial ban resulted in statistically proven weight loss. If the ban does not work, more items will still be legislatively capped,

with the excuse that the initial portion caps were not enough to fix the obesity problem. In either case, if the courts decide to

uphold portion-cap legislation, legislatures will have case law to back up their authority to ration food in the name of public

health. Bart Simpson, among others, once proclaimed, “You're damned if you do, and you're damned if you don't.”197

Truer

words were never spoken--from an imaginary ten-year old, no less.

Obviously, obesity does not disappear just because the government can tell citizens how much they are allowed to eat. So what is

the solution to the rising obesity problem in America? This Comment supports the notion that food companies and individuals are

responding to the obesity problem on their own, without the need for government intervention. Further, companies are making

nutritional information more readily available, so that the people themselves may make more informed choices about what

they eat or drink. As the Soda Ban amendment notice pointed out, “When people are given larger portions they unknowingly

consume more.”198

A practice nicknamed “defensive restauranting” 199 has begun to develop among fast food chains in recent years, where

companies offer low- *580 fat and healthy alternatives on their menus. For instance, McDonald's now offers bottled water,

a variety of salads, and smoothies, as well as oatmeal for breakfast.200

Taco Bell created a Fresco Menu comprised of six

items under 350 calories and with fewer than ten grams of fat.201

At Wendy's, one can substitute french fries in a combo

meal for chili, a salad, a baked potato, or apple slices.202

Not only is calorie information readily available on these restaurants'

websites, but McDonald's has also added calorie information to its drive-thru and dine-in menu boards.203

With these fast-food

giants voluntarily taking initiative, it will not be long before other companies follow suit. Additionally, both PepsiCo and Coca-Cola have decided to offer more low-calorie drinks in their vending machines to encourage low-calorie purchases.

204 One

initiative that will soon take effect in select cities is that calorie counts will be posted on the buttons of each vending machine

selection.205

Further, Coca-Cola has started running advertisements that address the obesity problem.206

Others in the food industry have also joined the ranks of fast-food and beverage companies that are addressing obesity. Kraft

announced that “it would eliminate marketing in schools,”207

and Frito-Lay eliminated trans-fats from its snack foods.208

American schools saw a twenty-four percent decline in the purchase of non-diet drinks from 2002-2004.209

Since children





replaced these beverages with sugary sports drinks and fruit drinks, 210 it is not clear whether the decline in non-diet drinks

resulted in any weight loss; however, it is evident that providing information to the public has resulted in a change in private

behavior. These companies' practices of providing the information necessary for a person to make *581 informed choices puts

the individual's health in his own hands and eliminates any need for the government to step in and mandate what is acceptable

for him.

V. Conclusion

When this author first heard of the New York City Soda Ban, it brought up the image of Winston Smith from the book 1984,

with his frail and wretched body, straining to touch his toes as the lady on his telescreen assured him he could do better (as if

he had a choice but to do so), all while under Big Brother's watchful eye. 211 The United States is founded on freedom. Part

of freedom is choice.212

No government entity has the power to put a cap on what a person may eat or drink. Administrative

agencies cannot pass a portion-cap law because it violates the separation-of-powers doctrine. The states cannot do so because it

violates the dormant Commerce Clause, nor could Congress, or any other legislative body, for it would violate the constitutional

guarantees of due process or equal protection.

Provided a governmental body is able to overcome these legal arguments, the implications are grim. Both positive and negative

effects of a portion-cap law on an initial product would support the argument that in order to correct the obesity problem, the

government must cap the portion sizes of even more products. Frighteningly, a court's sanction of this government practice, to

any extent, would theoretically give the government unlimited power to control how much the public is allowed to consume.

The solution to curb obesity in American society is to encourage companies to educate the public about what they are eating and

drinking so that they can make informed choices and to demand that establishments have healthier choices available. Knowledge

is strength in the face of government protection--not ignorance.213

“Power is not a means; it is an end.”214

The power to make

decisions about what one consumes should remain with the individual, not passed to the government.

Footnotes

1 Jay Bhattacharya & Neeraj Sood, Who Pays for Obesity?, 25 J. Econ. Persp., Winter 2011, at 139, 140.

2 Katherine M. Flegal et al., Prevalence and Trends in Obesity Among US Adults, 1999-2000, 288 JAMA 1723, 1723-27 (2002).

3 Rogan Kersh & James A. Morone, Obesity, Courts, and the New Politics of Public Health, 30 J. Health Pol. Pol'y & L. 839, 842 (2005).

4 Id.

5 Id. at 840.

6 Id. (citing 1920 prohibition and the 1872 ban on contraceptives and abortion).

7 Id.

8 Overweight and Obesity: Adult Obesity Facts, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/obesity/data/adult.html

(last updated Mar. 28, 2014).

9 See, e.g., Bhattacharya & Sood, supra note 1, at 153.

10 Id. at 154.

11 Id.

12 Youfa Wang et al., Will All Americans Become Overweight or Obese? Estimating the Progression and Cost of the US Obesity

Epidemic, 16 Obesity 2323, 2323 (2008).





13 Evette Ferkassian, Expanding Waistlines: How Some States and Employers Are Responding to the Obesity Epidemic and Its Impact

on Rising Health Care Costs, 20 Annals Health L. 116, 118 (2010).

14 Letter from Baylen J. Linnekin, Exec. Dir., Keep Food Legal, to N.Y.C. Dep't of Health and Mental

Hygiene (July 24, 2012) [hereinafter Linnekin Letter], available at http://www.keepfoodlegal.org/PDFs/keepfoodlegal_nyc_

dohmh_beverage_comments.pdf.

15 Olff v. E. Side Union High Sch. Dist., 404 U.S. 1042, 1044 (1972) (Douglas, J., dissenting).

16 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 980 n.1 (1992) (Scalia, J., concurring in part and dissenting in part) (“It drives

one to say that the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death.”).

17 Bd. of Health, Notice of Adoption of an Amendment (§81.53) to Article 81 of the New York City Health Code, Dep't Health &

Mental Hygiene (2012) [hereinafter Amendment Notice], available at http:// www.nyc.gov/html/doh/downloads/pdf/notice/2012/

notice-adoption-amend-article81.pdf.

18 See N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene, No. 653584/12, 2013

WL 1343607, at *2 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014).

19 Id. at *20.

20 Id.

21 City of Cleveland v. Ohio, 989 N.E.2d 1072, 1075 (Ohio Ct. App. 2013).

22 Id.

23 See N.Y.C. Health Code § 81.08(a) (N.Y. Legal Publ'g Corp. 2014), available at http://www.nyc.gov/html/doh/downloads/pdf/about/

healthcode/health-code-article81.pdf; Balt. City, Md., Health Code § 6-507(b) (2013).

24 S. F., Cal., Health Code art. 8, § 471.4(a)(1) (2010).

25 Amendment Notice, supra note 17.

26 Id.

27 Michael M. Grynbaum, New York Plans to Ban Sale of Big Sizes of Sugary Drinks, N.Y. Times, May

30, 2012, available at http:// www.nytimes.com/2012/05/31/nyregion/bloomberg-plans-a-ban-on-large-sugared-drinks.html?

_r=1&ref=todayspaper&pagewanted=all.

28 See Amendment Notice, supra note 17.

29 Id.

30 Id.

31 Id.

32 N.Y.C. Health Code § 81.03(s) (N.Y. Legal Publ'g Corp. 2014), available at http://www.nyc.gov/html/doh/downloads/pdf/about/

healthcode/health-code-article81.pdf

33 Amendment Notice, supra note 17.

34 See Memorandum of Understanding Between N.Y. State Dep'ts of Health & Agric. & Mkts. from Victor E. Pisani, Dir., Div. of

Envtl. Health Prot., to City/Cnty Dirs. of Envtl. Health Dist. Dirs. (Dec. 28, 2010) [[hereinafter Memorandum of Understanding],

available at http:// www.nyc.gov/html/oath/downloads/pdf/DOH%20MOU%2012_28_10.pdf.

35 Id. at 3.

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2030255414&pubNum=0000578&originatingDoc=I2b573e30656411e498db8b09b4f043e0&refType=RP&fi=co_pp_sp_578_1075&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_578_1075

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2033680085&pubNum=0007048&originatingDoc=I2b573e30656411e498db8b09b4f043e0&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)










36 Id. (emphasis added).

37 Id. (emphasis added).

38 Michael M. Grynbaum, Health Panel Approves Restriction on Sale of Large Sugary Drinks, N.Y. Times, Sept. 13, 2012, available

at http:// www.nytimes.com/2012/09/14/nyregion/health-board-approves-bloombergs-soda-ban.html?_r=1&.

39 Josh Margolin, Mayor Bloomberg Wants to Impose 16-Ounce Limit on Sugar Drinks, N.Y. Post, May 31, 2012, available at http://

www.nypost.com/p/news/local/supersize_smack_TebHeJsmQxoOjqawvfuXRL.

40 Editorial, New York Soda Cap Wouldn't Beat Obesity, USA Today, June 3, 2012, available at http:// usatoday30.usatoday.com/news/

opinion/editorials/story/2012-06-03/soda-16-ounces-Bloomberg/55366704/1.

41 Memorandum of Understanding, supra note 34, at 3.

42 Verified Article 78 & Declaratory Judgment Petition at 7-10, N.Y., Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C.

Dep't of Health & Mental Hygiene, No. 653584/12, 2013 WL 1343607 (N.Y. Sup. Ct. Mar. 11, 2013).

43 Id. at 1.

44 Id. at 6.

45 Id. at 7.

46 Id.

47 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, No. 653584/12, 2013 WL

1343607, at *20-21 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014).

48 See Boreali v. Axelrod, 517 N.E.2d 1350, 1355 (N.Y. 1987).

49 Dutchess/Putnam Rest. & Tavern Ass'n v. Putnam Cnty. Dep't of Health, 178 F. Supp. 2d 396, 402 (S.D.N.Y. 2001) (citing Boreali,

517 N.E.2d at 1355-57).

50 McKinney v. Comm'r of N.Y. State Dep't of Health, 836 N.Y.S.2d 794, 805 (Sup. Ct. 2007), aff'd, 840 N.Y.S.2d 6 (App. Div. 2007).

51 Id.

52 N.Y. Statewide Coal., 2013 WL 1343607, at *9, *16-18.

53 Boreali, 517 N.E.2d at 1355.

54 Id.

55 N.Y. Statewide Coal., 2013 WL 1343607, at *8.

56 See Memorandum of Understanding, supra note 34, at 5.


58 Id.

59 Id.

60 Id. at *9.

61 Id.

62 Id.





















63 Boreali v. Axelrod, 517 N.E.2d 1350, 1356 (N.Y. 1987).

64 Nicholas v. Kahn, 389 N.E.2d 1086, 1088 (N.Y. 1979).

65 N.Y.C. Charter § 21 (2012).

66 Id. § 28.

67Id.

68 Levine v. Whalen, 349 N.E.2d 820, 822 (N.Y. 1976) (emphasis added) (citations omitted).

69 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, No. 653584/12, 2013

WL 1343607, at *9 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014); see also

Amendment Notice, supra note 17, at 1.

70 N.Y.C. Charter § 556(c)(2).

71 Id. § 556(c)(9).

72 Id. § 1043(a).



75 Id. at *15.

76 Id. (emphasis added). Obesity, even if considered a “disease,” lacks the emphasized characteristics quoted.

77 Id. at *16.

78 Id.


80 Leonard v. Dutchess Cnty. Dep't of Health, 105 F. Supp. 2d 258, 267-68 (S.D.N.Y. 2000).

81 See Brooklyn Union Gas Co. v. N.Y. State Human Rights Appeal Bd., 359 N.E.2d 393, 397 (N.Y. 1976) (calling reliance on legislative

inactivity “questionable”); see also McKinney v. Comm'r of N.Y. State Dep't of Health, 836 N.Y.S.2d 794, 805 (Sup. Ct. 2007) (“The

Courts are hesitant to apply persuasive significance to legislative inaction.” (citing Boreali v. Axelrod, 517 N.E.2d 1350, 1356 (N.Y.

1987)), aff'd, 840 N.Y.S.2d 6 (App. Div. 2007).

82 See N.Y.C. Council Res. 0768-2011 (Apr. 6, 2011), available at http://legistar.council.nyc.gov/LegislationDetail.aspx?

ID=862347&GUID=14B3F44A-502C-410F-96A2-8420D81DBB6C&Options=&Search=.

83 See N.Y.C. Council Res. No. 1264-2012 (Mar. 28, 2012), available at http://legistar.council.nyc.gov/LegislationDetail.aspx?

ID=1102925&GUID=5EAE5E93-0881-4D42-B76C-A47B70E7AAB4&Options=&Search=;N.Y.C. Council Res. No. 1265-2012

(Mar. 28, 2012), available at http:// legistar.council.nyc.gov/LegislationDetail.aspx?ID=1102924&GUID=B0BB5DD1-56C8-431C-

A191-221D3A678B4E&Options=&Search=.

84 See N.Y.C. Council Res. 1264-2012; N.Y.C. Council Res. 1265-2012.

85 Assemb. 10965, 2009-2010 Leg., Reg. Sess. (N.Y. 2010), available at http://assembly.state.ny.us/leg/?default_fld=&

bn=A10965&term=2009&Summary=Y&Text=Y.

86 Assemb. 843, 2011-2012 Leg., Reg. Sess. (N.Y. 2011), available at http://assembly.state.ny.us/leg/?

sh=printbill&bn=A00843&term=2011.

























89 See N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, No. 653584/12, 2013

WL 1343607, at *17 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014).

90 Id.

91 Id. at *18.

92 Id.

93 Id.


95 Chiropractic Ass'n of N.Y. v. Hilleboe, 187 N.E.2d 756, 757 (N.Y. 1962) (quoting Williams v. Mayor of Balt., 289 U.S. 36, 42 (1933)).


97 Id.

98 See id.

99 Id.

100 Id.

101 Id.

102 Id.

103 Id. at *20.

104 Id.

105 Id.

106 See N.Y. State Ass'n of Cntys. v. Axelrod, 577 N.E.2d 16, 20 (N.Y. 1991).

107 Pell v. Bd. of Educ., 313 N.E.2d 321, 325 (N.Y. 1974) (internal citations omitted).

108 Law Enforcement Officers Union, Dist. Council 82 v. State, 655 N.Y.S.2d 770, 774 (App. Div. 1997) (“[T]here being no rational

basis for establishing a minimum square footage requirement for single and multiple occupancy housing units while having no such

requirement for double occupancy housing units, said distinction in treatment is arbitrary and capricious.” (internal quotation marks

omitted)). It should be noted that the actions of federal agencies, like the Food and Drug Administration (FDA) are also subject

to arbitrary and capricious review. See 5 U.S.C. § 706 (2012). It is for that reason that this Comment does not separately addressfederal agency review.

109 See Amendment Notice, supra note 17 (defining “sugary drink” as one that “is sweetened by the manufacturer or establishment,”

i.e., not one sweetened by the consumer).

110 Id.; see also McDonald's USA Nutrition Facts for Popular Menu Items, McDonalds (Oct. 14, 2013), nutrition.mcdonalds.com/

getnutrition/nutritionfacts.pdf.

111 See McDonald's USA Nutrition Facts, supra note 110.

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112 St. Vendor Project v. City of New York, 811 N.Y.S.2d 555, 562 (Sup. Ct. 2005) (“[A] reviewing court is limited to considering the

reasons that an agency gives for its action, at the time that it takes the action.” (citing Scherbyn v. Wayne-Finger Lakes Bd. of Coop.

Educ. Servs., 573 N.E.2d 562 (N.Y. 1991))), aff'd, 841 N.Y.S.2d 79 (App. Div. 2007).

113 See Amendment Notice, supra note 17.

114 Id.

115 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, No. 653584/12, 2013 WL

1343607, at *20 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014).

116 Id. at *19.

117 Id.

118 Id. at *20.

119 Id.

120 Id.

121 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, 970 N.Y.S.2d 200 (App.

Div. 2013), aff'd, 23 N.Y.3d 681 (2014).

122 The Daily Show with Jon Stewart: Drink Different (Comedy Central television broadcast May 31, 2012), available at http://

www.thedailyshow.com/watch/thu-may-31-2012/drink-different.

123 C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 401 (1994) (quoting H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S.

525, 537-38 (1949)).

124 U.S. Const. art. I, § 8, cl. 3.

125 U.S. Const. amend. X.

126 United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007) (explaining that the Court has “long

interpreted the Commerce Clause as an implicit restraint on state authority, even in the absence of a conflicting federal statute”).

127 Hughes v. Oklahoma, 441 U.S. 322, 336 (1979).

128 Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 99 (1994).

129 See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

130 Id.

131 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).

132 Id.

133 See, e.g., Consol. Freightways Corp. v. Kassel, 475 F. Supp. 544, 551 (S.D. Iowa 1979) (“The total effect of the law as a safetymeasure in reducing accidents and casualties is so slight and problematical that it does not outweigh the national interest in keeping

interstate commerce free from interferences that seriously impede it.”), aff'd, 612 F.2d 1064 (8th Cir. 1979), aff'd, 450 U.S. 662 (1981).

134 Brown-Forman, 476 U.S. at 579.

135 Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 94 (1994).

136 OLTRA, Inc. v. Pataki, 273 F. Supp. 2d 265, 272 (W.D.N.Y. 2003).

137 Id.












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138 W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 202 (1994).

139 See, e.g., Or. Waste Sys., Inc., 511 U.S. at 93 (surcharge on in-state disposal of out-of-state waste held facially invalid); Camps

Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 578-79 (1997) (tax exemption statute found facially invalid where it

favored charities serving in-state residents over charities involved principally in interstate business); Fulton Corp. v. Faulkner, 516

U.S. 325, 333 (1996) (state's “intangibles” tax on fraction of value of corporate stock owned by state residents that was inversely

proportional to corporation's exposure to state's income tax found facially discriminatory against interstate commerce and held

invalid).

140 C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 394 (1994) (“Though...[an] ordinance may not in explicit terms seek to

regulate interstate commerce, it does so nonetheless by its practical effect and design.”).

141 OLTRA, Inc., 273 F. Supp. 2d at 272 (alteration in original) (quoting Brown & Williamson Tobacco Corp. v. Pataki, 320 F.3d 200,

209 (2d Cir. 2003)).

142 Aspartame Info. Center, http://www.aspartame.org/ (last visited Apr. 1, 2014).

143 Hughes v. Oklahoma, 441 U.S. 322, 337-38 (1979).

144 Michael E. Smith, State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203, 1239 (1986).

145 See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

146 Sherlock v. Alling, 93 U.S. 99, 103 (1876).

147 For example, Pepsi has twenty-two bottle manufacturing plants located in only four states. Locations, Pepsi Bottling Ventures, http://

www.pepsibottlingventures.com/locations/ (last visited May 1, 2014).

148 Pike, 397 U.S. at 142.

149 Kassel v. Consol. Freightways Corp., 450 U.S. 662, 670 (1981).

150 Calories in Chocolate-Flavor Milk, Calorie Count, http:// caloriecount.about.com/calories-chocolate-flavor-milk-i14177 (last visited

May 24, 2014).

151 Calories in Coca-Cola Classic, Calorie Count, http:// caloriecount.about.com/calories-coca-cola-classic-i98047 (last visited May 24,

2014).

152 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 444 (1960).

153 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 575 (1986).

154 Id. at 583-84.

155 Id. at 582 (emphasis added).

156 Id. at 583.

157 Id. at 585.

158 Kassel v. Consol. Freightways Corp., 450 U.S. 662, 671 (1981) (footnote omitted).

159 See Sherlock v. Alling, 93 U.S. 99, 103 (1876) (noting that the Commerce Clause “was never intended to cut the States off from

legislating on all subjects relating to the health, life, and safety of their citizens”).

160 Kassel, 450 U.S. at 671.

161 Id. at 670.

162 Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).














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163 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).

164 See, e.g., Daniel A. Farber, Legal Pragmatism and the Constitution, 72 Minn. L. Rev. 1331, 1355 (1988) (“[T]here simply is no way a

court can distinguish a fundamental right from any other personal interest.... As a society we do share some notions about the relative

importance of various personal interests. Few people seriously think, for example, that the right to eat popcorn is as important as the

right to medical care.”). This quote seemingly gives the “right to eat” fundamental status without offering analysis, but also recognizes

that it is not something likely to ever be up for debate because of its relative unimportance in relation to other fundamental rights.

165 Am. Can Co. v. Or. Liquor Control Comm'n, 517 P.2d 691, 694 (Or. Ct. App. 1973).

166 Id.

167 Id.

168 Id.

169 Id. at 702.

170 Id. at 703 (“Because the bottle bill is a legitimate exercise of the police power, consistent with federal policy legislation, which does

not impede the flow of interstate commerce and which does not discriminate against non-Oregon interests, we hold that it is valid

legislation under the Commerce Clause.”).

171 Id. at 704.

172 Id. at 705.

173 Id. at 704.

174 Id.

175 Id.

176 Id. (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).

177 See id. at 694.

178 Id. “(‘[P]ull top’ cans), may not be sold at retail in Oregon.” Id.

179 Id. at 704 (quoting McGowan, 366 U.S. at 425).

180 See There's a War on, You Know!, Ames Hist. Soc'y, http:// www.ameshistoricalsociety.org/exhibits/events/rationing.htm (last

visited May 15, 2014).

181 See Park & Shop Mkts, Inc. v. City of Berkeley, 172 Cal. Rptr. 515, 520 (Ct. App. 1981).

182 Id.

183 Id. (quoting Ry. Express Agency v. New York, 336 U.S. 106, 110 (1949)).

184 Id.

185 Id. at 519.

186 Grocers Dairy Co. v. McIntyre, 138 N.W.2d 767, 769 (Mich. 1966).

187 Id. at 767.

188 Id. at 769.

189 Id. at 770. Note that this case was decided in 1966, which explains the archaic reasoning of the legislature.






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190 Id. at 769.

191 Id. at 770.

192 Id. (quoting Carolene Prods. Co. v. Thompson, 267 N.W. 608, 610 (Mich. 1936)).

193 Id. at 771.

194Id.

195 Id. at 770-71.

196 Id. at 768, 771.

197 Deep, Deep Trouble, on The Simpsons Sing the Blues (Geffen Records 1990).

198 Amendment Notice, supra note 17 (emphasis added).

199 Theodore H. Frank, A Taxonomy of Obesity Litigation, 28 U. Ark. Little Rock L. Rev. 427, 428 (2006).

200 McDonald's USA Nutrition Facts, supra note 110.

201Taco Bell, http://www.tacobell.com/food/menu/fresco (last visited May 24, 2014).

202 Wendy's, http://www.wendys.com/food/nutritious-options.jsp (last visited May 24, 2014).

203 Allison Aubrey, McDonald's to Post Calories on Menu Boards, Nat'l Pub. Radio (Sept. 13, 2012, 4:00 AM), http://

www.npr.org/2012/09/13/161050157/mcdonalds-to-post-calories-on-menu-boards.

204 Leon Stafford, Vending Machines to Display Calorie Counts in 2013, Atlanta J. Const. (Oct. 8, 2012, 10:23 AM), http:// www.ajc.com/

news/business/vending-machines-to-display-calorie-counts-in-2013/nSXW8/.

205 Id.

206 Mary Beth Quirk, Coca-Cola Taking Its Head Out of the Sand, Addressing Obesity for the First Time in Ads, Consumerist (Jan. 14,

2013), http://consumerist.com/2013/01/14/coca-cola-taking-its-head-out-of-the-sand-addressing-obesity-for-the-first-time-in-ads/.

207 Edieth Y. Wu, Mcfat--Obesity, Parens Patriae, and the Children, 29 Okla. City U. L. Rev. 569, 576 (2004).

208 Id.

209 Frank, supra note 199, at 433.

210 Id.

211 George Orwell, 1984 29-34 (Signet Classics 1950) (1949).

212 Id. at 7 (“War is peace. Freedom is slavery. Ignorance is strength.”).

213 Id.

214 Id. at 217.

a1 J.D. Candidate, South Texas College of Law, Spring 2014; B.A. in Theatre, University of Houston. This article is dedicated to Diet

Dr Pepper, without which I would have never made it through law school.

55 STXLR 553

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.




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