[JURIST] The New York Court of Appeals [official website] ruled [opinion, PDF] 4-2 Thursday that the New York City Board of Health [official website] exceeded its powers as a regulatory authority by banning the serving of large portions of sugary drinks. The Portion Cap Rule [text, PDF] bans the sale of sugary drinks over 16 ounces, although this does not apply to convenience stores and supermarkets. The court considered the question of whether the New York City Board of Health exceeded its powers and also took into account the ruling in Boreali v Axelrod [opinion, PDF] in which the court ruled that the New York City Health department overstepped its powers by imposing a smoking ban in certain indoor public places. Judge Eugene Pigott Jr. wrote for the majority, holding that

The New York City Board of Health, in adopting the “Sugary Drinks Portion Cap Rule,” exceeded the scope of its regulatory authority. By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York.

This opinion was joined by two other judges. Judge Sheila Abdus-Salaam wrote a concurring opinion, while Judge Susan Read filed a dissent joined by Chief Judge Jonathan Lippman which held that “What petitioners have truly asked the courts to do is to strike down an unpopular regulation, not an illegal one. Indeed, petitioners constantly stress just how unpopular the Portion Cap Rule is. But if that is so, eliminating, limiting, or preventing it via political means should present little obstacle.” The New York Court of Appeals is the court of last resort in the state of New York.

The court heard arguments after the First Department of the New York State Supreme Court Appellant Division [official website] upheld a lower court’s ruling [JURIST reports] that blocked the Portion Cap Rule last July. The New York City Health Commissioner Mary Bassett released a statement [text, PDF] that “Today’s ruling does not change the fact that sugary drink consumption is a key driver of the obesity epidemic, and we will continue to look for ways to stem the twin epidemics of obesity and type 2 diabetes by seeking to limit the pernicious effects of aggressive and predatory marketing of sugary drinks and unhealthy foods.” The Washington Legal Foundation [advocacy website] released a statement [press release] “The decision marked a victory for WLF, which filed an amicus curiae brief in the case charging that the Board of Health, in enacting the soda ban, exceeded its administrative authority by improperly attempting to exercise legislative power, which is exclusively reserved to the New York City Council.”