Kara Marcello

Document Type



Faced with an obesity epidemic, on September 13, 2012, the New York City Board of Health became the first local administrative body to amend its health code to restrict the size of sugar-sweetened beverages sold in the food service establishments subject to its jurisdiction. A legal challenge led by the American Beverage Association quickly followed. In March 2013, the New York County Supreme Court struck down the portion cap rule. The challengers succeeded by arguing that the Board’s promulgation of the portion cap rule violated the separation of powers doctrine under the state constitution by usurping the power endowed to the New York City Council. In addition, the court held that the portion cap rule was arbitrary and capricious. The Appellate Division affirmed the decision in July 2013. In October 2013, the New York Court of Appeals agreed to hear the case. This Note defends the legality of the portion cap rule as a valid exercise of the Board of Health’s police power. This Note elucidates the power of the Board, which is ultimately derived from the state, through an examination of municipal home rule, the city charter, commentary illustrating the intent of the state legislature, and case law. The decisions of the courts striking down the portion cap rule represent a fundamental misunderstanding of the quasi-legislative powers of the Board of Health to address the evolving public health needs of the people of New York City.