COURT OF APPEALS

STATE OF NEW YORK

NEW YORK STATEWIDE COALITION OF HISPANIC

CHAMBERS OF COMMERCE; THE NEW YORK KOREAN-

AMERICAN GROCERS ASSOCIATION; SOFT DRINK AND

BREWERY WORKERS UNION, LOCAL 812,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS; THE

NATIONAL RESTAURANT ASSOCIATION; THE NATIONAL

ASSOCIATION OF THEATRE OWNERS OF NEW YORK

STATE; and THE AMERICAN BEVERAGE ASSOCIATION,

Petitioners-Respondents,

For a Judgment Pursuant to Articles 78 and 30 of the Civil Practice

Law and Rules,

- against -

THE NEW YORK CITY DEPARTMENT OF HEALTH AND

MENTAL HYGIENE; THE NEW YORK CITY BOARD OF

HEALTH; and DR. THOMAS FARLEY, in his Official Capacity

as Commissioner of the New York City Department of Health and

Mental Hygiene,

Respondents-Appellants.

APL

2013-00291

BRIEF OF AMICI CURIAE PROFESSORS OF ADMINISTRATIVE LAW AND STATE

AND LOCAL GOVERNMENT LAW

GILLIAN E. METZGER

RICHARD BRIFFAULT

SARA HAVIVA MARK

Center for Constitutional Governance

Columbia Law School

Counsel for Amici Curiae in Support of

Respondents-Appellants

435 West 116th Street, New York, NY 10027

Tel: (212) 854-0064

Fax: (212) 854-7946

smark@law.columbia.edu

April 22, 2014

i

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT.............................................................................. 1

ARGUMENT............................................................................................................ 4

I. Boreali v. Axelrod Establishes A Flexible And Pragmatic Approach That

Allows Agency Regulation Under Broad Delegations Of Authority, And

This Court Has Long Upheld Public Health Regulations Under Broad

Delegations................................................................................................ 4

(A) This Court Has Flexibly Applied The Boreali Analysis And

Upheld Agency Regulations Under Broad Delegations Of

Authority......................................................................................... 5

(B) New York Courts Frequently Have Upheld Regulations

Promulgated By Public Health Agencies Under Broad

Delegations................................................................................... 11

1. The New York City Charter Grants The BOH Broad

Authority, And New York Courts Repeatedly Have Held

Such Broad Grants To Public Health Agencies To Be

Constitutional................................................................ 11

2. Upholding Public Health Regulations Under These Broad

Delegations Of Authority To Public Health Agencies

Continues Post-Boreali.................................................. 13

II. The Portion Cap Rule Is A Constitutional Exercise Of The BOH’s

Delegated Authority Under A Proper Boreali Analysis ........................ 15

(A) The Portion Cap Rule Plainly Falls Within The BOH’s Broad

Authority And The BOH Did Not Promulgate The Rule On A

“Clean Slate”………………………………………………......... 16

ii

(B) The Portion Cap Rule Reflects Appropriate Attention To A Variety

Of Regulatory Factors And The BOH’s Public Health

Expertise………………………………………………………... 18

1. The BOH’s Consideration Of Social, Economic, And

Jurisdictional Factors Was Appropriate And Consistent

With Well-Established Norms Of Regulatory Design.. 19

2. The Portion Cap Rule Is The Product Of The BOH’s

Expertise........................................................................ 25

(C) The Portion Cap Rule Did Not Improperly Intrude On Legislative

Debate, And Legislative Inaction Should Be Given Little Weight

In The Boreali Analysis................................................................ 27

III. The Portion Cap Rule Should Be Sustained Under A Nonconstitutional

Approach That Focuses On Statutory Authorization And Reasoned

Administrative Decisionmaking.............................................................. 30

(A) Under Federal Law, Broad Delegations Are Constitutional And

Courts Check Administrative Decisionmaking Through

Nonconstitutional Means.............................................................. 30

(B) The Portion Cap Rule Is Statutorily Authorized And Is Not

Arbitrary Or Capricious................................................................ 34

iii

TABLE OF AUTHORITIES

Page

CASES

Boreali v. Axelrod,

71 N.Y.2d 1 (1987)....................................................................................... passim

Bourquin v. Cuomo,

85 N.Y.2d 781 (1995)................................................................................... passim

Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................................................................................ 31

Citizens for an Orderly Energy Policy, Inc. v. Cuomo,

78 N.Y.2d 398 (1991)............................................................................................ 9

City of Arlington v. FCC,

133 S. Ct. 1863 (2013)......................................................................................... 37

Clark v. Cuomo,

66 N.Y.2d 185 (1985)........................................................................ 5, 6, 9, 10, 28

Concerned Home Care Providers, Inc. v. N.Y. State Dep’t of Health,

969 N.Y.S.2d 743 (Sup. Ct. 2013)....................................................................... 15

Cubas v. Martinez,

8 N.Y.3d 611 (2007).............................................................................................. 8

Dutchess/Putnam Rest. & Tavern Ass’n, Inc. v. Putnam City Dep’t of Health,

178 F. Supp. 2d 396 (S.D.N.Y. 2001).................................................................. 10

Ellicot Grp., LLC v. State of N.Y. Exec. Dep’t Office of Gen. Servs.,

922 N.Y.S.2d 894 (App. Div. 2011)...................................................................... 9

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009)............................................................................................. 32

iv

Greater N.Y. Taxi Ass’n v. N.Y.C. Taxi and Limousine Comm’n,

972 N.Y.S.2d 513 (Sup. Ct. 2013)....................................................................... 10

Grossman v. Baumgartner,

17 N.Y.2d 345 (1966)........................................................................................... 12

Health Ins. Ass’n of America v. Corcoran,

551 N.Y.S.2d 615 (App. Div. 1990)...................................................................... 9

Justiana v. Niagara Cnty. Dep’t of Health,

45 F. Supp. 2d 236 (W.D.N.Y. 1999).................................................................. 10

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928)............................................................................................. 31

Leonard v. Dutchess Cnty. Dep’t of Health,

105 F. Supp. 2d 258 (S.D.N.Y. 2000).................................................................. 10

Levine v. Whalen,

39 N.Y.2d 510 (1976)............................................................................................ 7

Mass. v. Envtl. Prot. Agency,

549 U.S. 497 (2007)............................................................................................. 21

Matter of Bologno v. O’Connell,

7 N.Y.2d 155 (1959).............................................................................................. 7

Matter of Campagna v. Shaffer,

73 N.Y.2d 237 (1989).................................................................................... 14, 33

Matter of Chemical Specialties Mfrs. Ass’n v. Jorling,

85 N.Y.2d 382 (1995)...................................................................................... 8, 35

Matter of Consolation Nursing Home v. Comm’r of N.Y. State Dep’t of Health,

85 N.Y.2d 326 (1995)……….............................................................................. 35

Matter of Jewish Home & Infirmary v. N.Y State Dep’t of Health,

84 N.Y.2d 252 (1994).......................................................................................... 33

Matter of Marlberg v. Cole,

286 N.Y. 202 (1941)............................................................................................ 35

v

Matter of N.Y.C. C.L.A.S.H., Inc. v. N.Y. State Office of Parks, Recreation &

Historic Pres.,

975 N.Y.S.2d 593 (Sup. Ct. 2013)........................................................................ 10

Matter of N.Y. Pub. Interest Research Grp. v. N.Y. State Dep’t of Ins.,

66 N.Y.2d 444 (1985)......................................................................................... 35

Matter of N.Y. State Health Facilities Ass’n v. Axelrod,

77 N.Y.2d 340 (1991).......................................................................... 7, 13, 14, 28

Matter of Nicholas v. Kahn,

47 N.Y.2d 24 (1979).......................................................................................... 7, 8

Matter of Richardson,

247 N.Y. 401 (1928).............................................................................................. 6

McKinney v. Comm’r of N.Y. State Dep’t of Health,

836 N.Y.S.2d 794 (Sup. Ct. 2007)....................................................................... 15

Medical Soc’y of the State of N.Y. v. Serio,

100 N.Y.2d 854 (2003).......................................................................... 7, 8, 28, 33

Mercy Hosp. of Watertown v. N.Y. State Dep’t of Soc. Servs.,

79 N.Y.2d 197 (1992)............................................................................................ 8

Mistretta v. United States,

488 U.S. 361 (1989)............................................................................................. 30

Montalvo v. Consolidated Edison Co. of N.Y., Inc.,

460 N.Y.S.2d 784 (App. Div. 1983) …………………………………………… 21

Montrose Parkway Alts. Coal. v. U.S. Army Corps of Eng’rs,

405 F. Supp. 2d 587 (S.D. Md. 2005)............................................................ 22, 37

Nassau Bowling Proprietors Ass’n v. Cnty. of Nassau,

965 F. Supp. 376 (E.D.N.Y. 1997)...................................................................... 10

National Broadcasting Co. v. United States,

319 U.S. 190 (1943)............................................................................................. 31

vi

N.Y. State Ass’n of Counties v. Axelrod,

78 N.Y.2d 158 (1991).................................................................................... 35, 37

N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health,

556 F.3d 114 (2d Cir. 2009).......................................................................... 17, 26

Paduano v. City of New York,

257 N.Y.S.2d 531 (Sup. Ct. 1965), aff’d on op. below, 260 N.Y.S.2d 831 (App.

Div. 1965), aff’d, 17 N.Y.2d 875 (1966)............................................................. 12

People ex rel. Knoblauch v. Warden of Jail of Fourth Dist. Magistrate's Court,

216 N.Y. 154 (1915)............................................................................................ 12

People v. Weil,

146 N.Y.S.2d 416 (App. Div. 1955).................................................................... 13

Rent Stabilization Ass’n of N.Y.C., Inc. v. Higgins,

83 N.Y.2d 156 (1993)........................................................................................... 8

Taylor v. Consolidated Edison Co. of N.Y., Inc.,

552 F.2d 39 (2d Cir. 1977)……………………………………………………... 21

United States v. Price,

361 U.S. 304 (1960).............................................................................................. 9

Versailles Realty Co. v. N.Y. State Div. of Hous. & Cmty. Renewal,

76 N.Y.2d 325 (1990)............................................................................................ 9

Wetlands Action Network v. United States Army Corps of Eng'rs,

222 F.3d 1105 (9th Cir. 2000)............................................................................. 21

Whitman v. American Trucking Ass’ns, Inc.,

531 U.S. 457 (2001)............................................................................................. 30

Williamson v. Lee Optical of Okla.,

348 U.S. 483 (1955)............................................................................................ 21

Winnebago Tribe of Neb. v. Ray,

621 F.2d 269 (8th Cir. 1980)…........................................................................... 22

vii

STATUTES AND LAWS

21 U.S.C. § 343(q)(5)............................................................................................. 26

N.Y.C. Charter § 551.............................................................................................. 25

N.Y.C. Charter § 553 ............................................................................................. 25

N.Y.C. Charter § 556.................................................................. 2, 11, 13, 14, 16, 34

N.Y.C. Charter § 556(c)(2)................................................................... 11, 17, 18, 34

N.Y.C. Charter § 556(c)(9)..................................................................................... 18

N.Y.C. Charter § 556(e)(4)............................................................................... 14, 18

N.Y.C. Charter § 558........................................................................................ 12, 13

N.Y.C. Charter § 558(b)............................................................................... 2, 13, 14

N.Y.C. Charter § 558(c).......................................................................................... 12

N.Y. Pub. Health Law § 2801-a(1)......................................................................... 14

N.Y. Pub. Health Law § 2801-a(2)......................................................................... 14

N.Y. Pub. Health Law § 2801-a(3)......................................................................... 14

N.Y. Soc. Serv. Law § 364(2)(a) ........................................................................... 14

RULES AND REGULATIONS

58 C.F.R. 51735 § 1................................................................................................ 20

76 C.F.R. 3821 § 1.................................................................................................. 20

76 C.F.R. 3821 § 1(b)............................................................................................. 22

105 Mass. Code. Regs. § 590.009(G) .................................................................... 26

King County, Wash., Bd. of Health Code § 5.10.016............................................ 26

King County, Wash., Bd. of Health Code § 5.10.035............................................ 27

viii

N.Y. C.P.L.R. § 7803(3)................................................................................... 24, 35

R.C.N.Y. tit. 24, § 81.08 ........................................................................................ 27

R.C.N.Y. tit. 24, § 81.50 ........................................................................................ 26

R.C.N.Y. tit. 24, § 81.53 (proposed) ............................................................ 1, 16, 23

R.C.N.Y. tit. 24, § 81.53(a)(1) (proposed) ............................................................. 19

OTHER AUTHORITIES

Paul A. Diller, Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of

Woodrow Wilson, 40 Fordham Urb. L. J. 1859 (2013).......................................... 29

Cynthia Farina, Statutory Interpretation and the Balance of Power in the

Administrative State, 89 Colum. L. Rev. 452 (1989)............................................. 32

Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law,

110 Colum. L. Rev. 479 (1989).............................................................................. 31

Nat’l Conference of State Legislatures, Trans Fat and Menu Labeling

Legislation, http://www.ncsl.org/research/health/trans-fat-and-menu-labeling-

legislation.aspx....................................................................................................... 26

Nat’l Insts. of Health, Clinical Guidelines on the Identification, Evaluation, and

Treatment of Overweight and Obesity in Adults (1998)......................................... 17

N.Y.C. Dep’t of Health & Mental Hygiene Bd. Meeting Hr’g Tr., Sept. 13,

2012...................................................................................................... 18, 25, 36, 37

N.Y.C. Dep’t of Health & Mental Hygiene Bd. Meeting Hr’g Tr., June 12,

2012................................................................................................................... 18, 23

N.Y.C. Law Dep’t, Major New York City Charter Revisions Since 1897 (2013),

available at http://www.nylslawreview.com/wordpress/wp-

content/uploads/2013/02/Process-Powers-and-Lessons-for-the-Future.CLE-

Materials.pdf............................................................................................................. 1

ix

Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-

Benefit Analysis Can Better Protect the Environment and Our Health

(2008)...................................................................................................................... 20

Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952

(2007)...................................................................................................................... 32

Leon Stafford, Soda Wars: Cities Seek Restrictions, Taxes to Curb Obesity, Atlanta

Journal-Constitution, Nov. 12, 2012, http://www.ajc.com/news/news/local/soda-

wars-cities-seek-restrictions-taxes-to-curb-o/nS4b2/............................................. 27

Cass R. Sunstein, The Cost-Benefit State: The Future of Regulatory Protection

(2002)...................................................................................................................... 20

Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000)…......... 31

Tentative Determination Regarding Partially Hydrogenated Oils; Request for

Comments and for Scientific Data and Information, 78 Fed. Reg. 67169 (Nov. 8,

2013)....................................................................................................................... 27

Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health,

Wealth, and Happiness (2009)............................................................................... 22

Michael P. Vandenbergh, Amanda R. Carrico, & Lisa Schultz Bressman,

Regulation in the Behavioral Era, 95 Minn. L. Rev. 715 (2011)........................... 22

World Health Org., Obesity: Preventing and Managing the Global Health

Epidemic (2000), available at http://whqlibdoc.who.int/trs/WHO_TRS_894.pdf

................................................................................................................................. 17

x

STATEMENT OF INTEREST OF THE AMICI CURIAE

Amici are professors of law who teach and write about administrative law

and state and local government law. They have substantial expertise and

experience in these areas, including the regulatory powers of local administrative

agencies. Specifically, amici can speak to the role of administrative agencies,

relationships between the branches of government, and the state of modern

regulation. Their legal expertise thus bears directly on the important

administrative, constitutional, and governance issues before this Court in this

appeal. Amici1 are:

• Gillian E. Metzger, Vice Dean and Stanley H. Fuld Professor of Law,

Columbia Law School; Faculty Director, Center for Constitutional

Governance2

• Richard Briffault, Joseph P. Chamberlain Professor of Legislation,

Columbia Law School

• Nestor M. Davidson, Professor of Law, Fordham School of Law;

Director, Fordham Urban Law Center

• James A. Gardner, Bridget and Thomas Black Professor and SUNY

Distinguished Professor, SUNY Buffalo Law School 1 Amici affirm that no counsel for a party authored this brief in whole or in part and that no

person other than amici made a monetary contribution to its preparation or submission. 2 Sara Haviva Mark is the Executive Director and Post-Doctoral Fellow of the Center for

Constitutional Governance at Columbia Law School. Ms. Mark is counsel for the amici.

Professors Metzger and Briffault are counsel for the amici, and members of the amici.

xi

• Aaron Saiger, Professor of Law, Fordham School of Law

• Patricia E. Salkin, Dean and Professor of Law, Touro College Jacob

D. Fuchsberg Law Center

• Peter L. Strauss, Betts Professor of Law, Columbia Law School

• Olivier Sylvain, Associate Professor of Law, Fordham School of

Law3

3 Institutional affiliations are provided for identification purposes only.

1

PRELIMINARY STATEMENT

New York constitutional and administrative law is grounded in a “long-

standing and steadfast refusal to construe the separation of powers doctrine in a

vacuum, instead viewing the doctrine from a commonsense perspective.”

Bourquin v. Cuomo, 85 N.Y.2d 781, 785 (1995). Guided by this principle, this

Court has applied its seminal delegation precedent — Boreali v. Axelrod, 71

N.Y.2d 1 (1987) — in a flexible and pragmatic manner, in the process upholding

myriad agency regulations as constitutional exercises of delegated authority. As

developed by this Court, the Boreali analysis is appropriately sensitive to the

inherent complexity of government regulation and the need for administrative

flexibility.

In the decision below, however, the Appellate Division erroneously departed

from this well-established precedent and applied the Boreali analysis in an

excessively narrow and restrictive fashion to strike down the “Portion Cap Rule,”

an amendment to Article 81 of the New York City Health Code promulgated by

the New York City Department of Health and Mental Hygiene, Board of Health

(BOH).4 R.C.N.Y. tit. 24, § 81.53 (proposed). The Appellate Division’s decision

4 For the purposes of this brief, we use the Board of Health (BOH), Department of Health

(DOH), and Department of Health and Mental Hygiene (DOHMH) interchangeably. The DOH

is the predecessor of the DOHMH, which combined the Department of Health and the

Department of Mental Hygiene in 2001. N.Y.C. Law Dep’t, Major New York City Charter

Revisions Since 1897 1 (2013), available at http://www.nylslawreview.com/wordpress/wp-

content/uploads/2013/02/Process-Powers-and-Lessons-for-the-Future.CLE-Materials.pdf. The

2

unduly constricts the BOH’s authority and sets a dangerous precedent with

potential to undermine the regulatory powers of many New York administrative

agencies.

Although the Appellate Division’s decision is an extreme misreading of

Boreali, at times other lower New York courts also have applied Boreali

inconsistently with the pragmatic and flexible approach this Court has pursued. As

a result, amici believe the Court should take this opportunity not simply to reverse

the erroneous invalidation of the Portion Cap Rule, but further to clarify the

appropriate contours of the Boreali analysis. Boreali does not and should not

represent the straightjacket on regulation that the Appellate Division erroneously

read it to be. Instead, as this Court should emphasize, Boreali provides a flexible

and pragmatic approach to delegation intended to accommodate the complexities

and changing realities of modern administrative government.

Under a proper application of Boreali, the Portion Cap Rule is plainly

constitutional. The New York City Charter grants the BOH broad authority to

address “all matters affecting health in the city of New York” through the New

York City Health Code and to add “provisions for security of life and health in the

city.” N.Y.C. Charter §§ 556, 558(b). This Court has repeatedly sustained similar

grants of authority to state and city public health bodies both before and after

BOH is the governing body of DOHMH (and formerly of DOH), and so lawsuits challenging

BOH-adopted rules often name DOHMH (or DOH) as a defendant as well.

3

Boreali, rejecting efforts to require detailed legislative articulation of specific

health policies. By contrast, the Appellate Division mistakenly imposed its own

limit on the Charter’s broad grant to the BOH — restricting it to regulating only

“inherently harmful and inimical matters” — and then compounded its error by

determining that a regulation addressing sugary drinks, a central contributor to the

growing public health crisis of obesity, is not a “matter[] affecting health” within

the BOH’s authority. Just as troubling, the Appellate Division faulted the BOH for

promulgating a nuanced rule that takes a variety of appropriate regulatory concerns

into account, suggesting that only extreme measures that pay no heed to the costs

and benefits of regulation can satisfy Boreali. In so doing, the lower court created

an unnecessary and deeply problematic conflict between Boreali and principles of

sound administrative governance. The Appellate Division further erred in

concluding that the Portion Cap Rule was not based on the agency’s public health

expertise, and at odds with legislative policy preference.

Finally, the Portion Cap Rule should also be sustained under a

nonconstitutional analysis that focuses on whether an agency wielded its powers

consistent with governing statutes or in a reasonable manner. Such an analysis

bears close similarities to New York’s traditional arbitrary and capricious review

and to Boreali itself, and is the approach that federal courts use to police broad

delegation to federal agencies. Its advantage lies in putting prime emphasis on

4

monitoring delegated authority rather than attempting to identify instances in

which administrative actions exceed difficult-to-define constitutional bounds on

delegation. Amici urge this Court to expressly adopt a similar nonconstitutional

approach as the focus of the Boreali analysis.

ARGUMENT

I. Boreali v. Axelrod Establishes A Flexible And Pragmatic

Approach That Allows Agency Regulation Under Broad

Delegations Of Authority, And This Court Has Long Upheld

Public Health Regulations Under Broad Delegations.

The seminal New York case on delegation, Boreali v. Axelrod, provides the

framework for the separation of powers analysis here.5 71 N.Y.2d 1. Although

Boreali struck down a Public Health Council (PHC) regulation prohibiting

smoking in certain public areas as unconstitutional agency lawmaking, subsequent

decisions demonstrate that Boreali allows for agency regulation under broad

delegations of administrative authority. In applying Boreali, this Court has

emphasized “the necessity of some overlap among the three separate branches of

government, as well as the great flexibility to be accorded the Governor in

determining the methods of enforcing legislative policy.” Bourquin, 85 N.Y.2d at

5 The Appellate Division decision applies state separation of powers doctrine to the case at hand,

and our analysis proceeds under this framework. However, we recognize that separation of

powers principles may apply differently at the local level, a position we understand is being

advanced by other amici to this litigation.

5

785 (quoting Clark v. Cuomo, 66 N.Y.2d 185, 189 (1985)) (internal quotations

omitted).

(A) This Court Has Flexibly Applied The Boreali Analysis And

Upheld Agency Regulations Under Broad Delegations Of

Authority.

In Boreali, this Court highlighted the “difficult-to-define line between

administrative rulemaking and legislative policymaking.” 71 N.Y.2d at 11. The

Court found that “the broad enabling statute in issue [was not] . . . itself an

unconstitutional delegation of legislative authority[,]” but nonetheless invalidated

the contested PHC regulation, holding that it had “stretched that statute beyond its

constitutionally valid reach.” Id. at 9. In so ruling, the Court emphasized four

“coalescing circumstances,” none of which standing alone would suffice to justify

invalidation. Id. at 11. Now referred to as the Boreali factors, these were that: (1)

the PHC impermissibly carved out exceptions based “solely” on economic and

social considerations; (2) the PHC “wrote on a clean slate, creating its own

comprehensive set of rules without the benefit of legislative guidance”; (3) “the

Legislature had repeatedly tried — and failed — to reach agreement” on how to

regulate smoking in public places, with forty bills introduced and none being

passed by both houses; and (4) no special expertise in the field of health was

necessary to develop the regulations. Id. at 12-14.

6

In subsequent decisions, this Court applied the Boreali analysis in a flexible

manner attuned to the inherently complex nature of government regulation. A

prime example is the much-cited decision in Bourquin, 85 N.Y.2d 781. There, the

Court held that an executive order establishing the Citizens’ Utility Board to

represent the interests of utility customers in proceedings before the Public Service

Commission did not violate the State’s separation of powers doctrine. Id. at 788.

Recognizing that “this Court has always understood that the duties and powers of

the legislative and executive branches cannot be neatly divided into isolated

pockets,” id. at 784, Bourquin held that the executive order did not improperly

usurp legislative authority. Summarizing prior jurisprudence, the Court

emphasized “its longstanding and steadfast refusal to construe the separation of

powers doctrine in a vacuum,” insisting instead on “a commonsense perspective”

that recognizes “‘the exigencies of government.’” Id. at 785 (quoting Matter of

Richardson, 247 N.Y. 401, 410 (1928)).

Moreover, following earlier decisions, Bourquin expressly approved the

Legislature’s decision to vest an agency “with the power to promote a broad, even

‘general’ legislative purpose.” Id. at 786 (analogizing to Clark, 66 N.Y.2d 185

(upholding executive creation of a Voter Registration Task Force against a

separation of powers challenge)). The Court rejected the view that there need be

“a specific and detailed legislative expression authorizing a particular executive act

7

as long as the basic policy decisions underlying the regulations have been made

and articulated by the Legislature.” Id. at 785-86 (quoting Matter of N.Y. State

Health Facilities Ass’n v. Axelrod, 77 N.Y.2d 340, 348 (1991)) (internal quotations

omitted). Indeed, acceptance of general agency delegations and refusal to require

legislative articulation of specific administrative policies are a hallmark of this

Court’s separation of powers jurisprudence. See Health Facilities Ass’n, 77

N.Y.2d at 348; Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979) (“[I]t is not

necessary that the Legislature supply administrative officials with rigid formulas in

areas where there are infinitely variable conditions thereby necessitating

flexibility.”); Levine v. Whalen, 39 N.Y.2d 510, 516 (1976) (“It is not always

necessary that . . . legislation prescribe a specific rule of action and, where it is

difficult or impractical for the Legislature to lay down a definite and

comprehensive rule, a reasonable amount of discretion may be delegated to the

administrative official.”) (citing Matter of Bologno v. O’Connell, 7 N.Y.2d 155,

159 (1959)).

More recently, in Medical Soc’y of the State of N.Y. v. Serio, 100 N.Y.2d

854 (2003), this Court again approved agency action pursuant to broad delegation

in sustaining regulations issued by the Superintendent of Insurance that reduced the

time period for filing no-fault insurance claims. In holding that the regulations did

not exceed the scope of the Superintendent’s constitutional authority despite their

8

far-reaching effects, the Serio Court emphasized that “the absence of a specific

statutory delegation of authority to establish time frames does not bar the

challenged regulations.” Id. at 866. To the contrary, “‘[t]he cornerstone of

administrative law is . . . the principle that the Legislature may declare its will, and

after fixing a primary standard, endow administrative agencies with the power to

fill in the interstices in the legislative product by prescribing rules and regulations

consistent with the enabling legislation.’” Id. at 865 (quoting Matter of Nicholas v.

Kahn, 47 N.Y. 2d at 31).

Bourquin and Serio demonstrate this Court’s consistently flexible and

pragmatic application of Boreali. See, e.g., Cubas v. Martinez, 8 N.Y.3d 611, 619

(2007) (regulations requiring proof of ineligibility for a social security number

upheld under Boreali as within the agency’s “broad” authority); Matter of

Chemical Specialties Mfrs. Ass’n v. Jorling, 85 N.Y.2d 382 (1995) (regulations

promulgated by the Commissioner of Environmental Conservation prohibiting the

sale of DEET held to be within the agency’s constitutional authority under

Boreali); Rent Stabilization Ass’n of N.Y.C., Inc. v. Higgins, 83 N.Y.2d 156 (1993)

(concluding that the Division of Housing and Community Renewal had the

authority under Boreali to adopt regulations expanding family succession rules for

rent-regulated housing); Mercy Hosp. of Watertown v. N.Y. State Dep’t of Soc.

Servs., 79 N.Y.2d 197, 207 (1992) (holding, under Boreali, that the authority for

9

DSS to conduct Medicaid audits based upon statistical sampling is “implicit in the

general grant of authority to supervise the administration of the Medicaid

program”); Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398,

412 (1991) (finding the Long Island Power Authority’s decision to close a nuclear

power facility constitutional under Boreali in light of the “broad discretion”

delegated to it); Versailles Realty Co. v. N.Y. State Div. of Hous. & Cmty. Renewal,

76 N.Y.2d 325, 328-29 (1990) (concluding that DHCR’s regulations prohibiting

rent increases for major capital improvements fall “plainly within the scope of the

agency’s mandate [to] . . . ‘protect[] tenants and the public interest’” under a

Boreali analysis).

To be sure, some lower courts have misread Boreali and failed to

appropriately employ the flexible and pragmatic approach this Court requires. For

example, in Ellicot Group, LLC v. State of N.Y. Executive Dep’t Office of Gen.

Servs., the Fourth Department struck down a regulation requiring that prevailing

wage be paid for work on private property leased by the agency solely under

Boreali’s “legislative inaction” factor, 922 N.Y.S.2d 894, 898 (App. Div. 2011),

despite this Court’s statement that “[l]egislative inaction, because of its inherent

ambiguity, ‘affords the most dubious foundation for drawing positive inferences.’”

Clark, 66 N.Y.2d at 190-91 (quoting United States v. Price, 361 U.S. 304, 310-11

(1960)). See also Health Ins. Ass’n of Am. v. Corcoran, 551 N.Y.S.2d 615, 621

10

(App. Div. 1990) (invalidating regulation which banned insurers from considering

HIV test results in determining an applicant’s insurability as broad policymaking

without considering the Court’s acceptance of general delegations in Clark or the

other Boreali factors).6

Indeed, one of the worrisome effects of the Appellate Division decision

below is that it has encouraged some lower courts to read Boreali in an

inappropriately restrictive fashion. See, e.g., Matter of N.Y.C. C.L.A.S.H., Inc. v.

N.Y. State Office of Parks, Recreation & Historic Pres., 975 N.Y.S.2d 593 (Sup.

Ct. 2013); Greater N.Y. Taxi Ass’n v. N.Y.C. Taxi and Limousine Comm’n, 972

N.Y.S.2d 513 (Sup. Ct. 2013). It is therefore essential that this Court clarify that

Boreali does not represent the straightjacket on contemporary administrative

government that the Appellate Division erroneously read it to be, and instead

confirm that the Boreali factors should be applied — as this Court has applied

them — with attention to the need for expert agencies to be able to flexibly address

ever-changing health and safety concerns.

6 In addition, some federal district courts in New York have struck down regulations prohibiting

smoking under Boreali, but these decisions involved exactly the same subject matter and type of

regulation at issue in Boreali itself and thus not surprisingly were found to be indistinguishable.

See Dutchess/Putnam Rest. & Tavern Ass’n, Inc. v. Putnam City Dep’t of Health, 178 F. Supp.

2d 396, 401 (S.D.N.Y. 2001); Leonard v. Dutchess Cnty. Dep’t of Health, 105 F. Supp. 2d 258,

265-66 (S.D.N.Y. 2000); Justiana v. Niagara City Dep’t of Health, 45 F. Supp. 2d 236, 245

(W.D.N.Y. 1999); Nassau Bowling Proprietors Ass’n v. Cnty. of Nassau, 965 F. Supp. 376, 380

(E.D.N.Y. 1997).

11

(B) New York Courts Frequently Have Upheld Regulations

Promulgated By Public Health Agencies Under Broad

Delegations.

A flexible and pragmatic approach to delegation is particularly evident with

respect to delegations to public health agencies, and appropriately so. Both this

Court and lower New York courts repeatedly have upheld the constitutionality of

broad delegations to state and city public health agencies and the regulations

promulgated pursuant to such delegations. This acceptance of broad public health

delegations reflects the need to take into account the changing threats to public

health that agencies like the BOH are charged with addressing.

1. The New York City Charter Grants The BOH Broad

Authority, And New York Courts Repeatedly Have Held

Such Broad Grants To Public Health Agencies To Be

Constitutional.

The New York City Charter provides the BOH, and the DOHMH of which it

is part, broad authority to regulate public health matters in the city. Section 556

grants the DOHMH the “jurisdiction to regulate all matters affecting health in the

city of New York and to perform all those functions and operations performed by

the city that relate to the health of the people of the city.” This includes authority

to “supervise the reporting and control of communicable and chronic diseases and

conditions hazardous to life and health.” N.Y.C. Charter § 556(c)(2) (emphasis

added). In turn, section 558 of the Charter charges BOH with power to alter,

amend, repeal, or add to the Health Code and “embrace all matters and subjects to

12

which the power and authority of the department extends.” Id. at § 558(b)-(c); see

also id. at § 558(b) (BOH “may . . . publish additional provisions for security of

life and health in the city and confer additional powers on [DOHMH] not

inconsistent with the constitution, laws of this state or this charter.”).

New York courts have consistently found these broad statutory delegations

provide the BOH with great authority to address threats to the public health. As

Respondents-Appellants correctly state, historically “this and other courts [have]

recognize[d] the extraordinary authority of the [BOH] to issue substantive rules

and standards in public health . . . ”. Appellant Br. 24-25; see also People ex rel.

Knoblauch v. Warden of Jail of Fourth Dist. Magistrate's Court, 216 N.Y. 154,

160 (1915) (upholding BOH rule regulating dog-walking under various Charter

provisions, including control over buildings, the streets, and “the general power to

preserve the public health and safety”); Grossman v. Baumgartner, 17 N.Y.2d 345,

351 (1966) (relying on N.Y.C. Charter § 558, authorizing the Board “to add to and

to alter, amend or repeal any part of the health code,” to uphold a provision

regulating tattooing practices); Paduano v. City of N. Y., 257 N.Y.S.2d 531, 542

(Sup. Ct. 1965), aff’d on op. below, 260 N.Y.S.2d 831 (App. Div. 1965), aff’d, 17

N.Y.2d 875 (1966) (upholding a regulation mandating the fluoridation of the city

water supply under the broad authority delegated to the BOH by N.Y.C. Charter §

556 “to regulate all matters affecting health in the city” and § 558(b) “to add to,

13

alter, or amend any part of the Health Code and to publish additional provisions for

the security of life and health in the city”); People v. Weil, 146 N.Y.S.2d 416, 419

(App. Div. 1955) (citing N.Y.C. Charter § 558 for the proposition: “The Board of

Health of the City of New York is invested with the power, extraordinary as to

administrative agencies, to formulate standards as well as to issue orders

enforceable by penal sanctions” and upholding a BOH regulation requiring that

owners and landlords maintain gas appliances and imposing criminal sanctions on

violators).

2. Upholding Public Health Regulations Under These Broad

Delegations Of Authority To Public Health Agencies

Continues Post-Boreali.

This longstanding recognition of New York health agencies’ comprehensive

regulatory powers has continued through this Court’s modern post-Boreali

jurisprudence, as Health Facilities Association v. Axelrod demonstrates. In Health

Facilities Association, this Court relied on the New York State Department of

Health’s broad enabling statute to uphold regulations adopted by the PHC which

required facilities seeking approval as nursing homes to admit 75% of the annual

rate of nursing home admissions of Medicaid patients in the county where the

facility was located. 77 N.Y.2d 340 (1991). The Court reasoned, “[w]here an

agency has been endowed with broad power to regulate in the public interest, we

have not hesitated to uphold reasonable acts on its part designed to further the

14

regulatory scheme,” though it “may adopt only rules and regulations which are in

harmony with the statutory responsibilities it has been given to administer.” Id. at

346 (quoting Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 242-43 (1989)).

Citing the “broad” legislative authorization given to the PHC — instructing it to

consider “public need,” including the “medical needs of all members of the

public,” in deciding whether to approve a nursing home — the Court upheld the

regulations. Id. at 346-47 (citing N.Y. Pub. Health Law § 2801-a(1)-(3)

(McKinney 2011)); see also N.Y. Social Servs. Law § 364(2)(a) (McKinney 1966)

(granting DOH the authority to establish and maintain standards for nursing

homes). The delegation found sufficient to authorize the PHC regulations in

Health Facilities Association is strikingly similar to the statutory language here —

granting BOH the authority to “regulate all matters affecting the health in the city

of New York,” and perform acts “as may be necessary and proper to carry out the

provisions” of the chapter. N.Y.C. Charter § 556, 556(e)(4).

New York’s lower courts have followed this lead, upholding public health

regulations on the grounds of broad delegation and sufficient legislative guidance.

Relying heavily on the precedents of Bourquin and Health Facilities Association,

these courts cite to the broad enabling statutes and the inherent complexities of a

health care system and hold that the contested regulations were not promulgated on

a “clean slate,” but instead were authorized by the underlying legislative goal of

15

promoting public health. Concerned Home Care Providers, Inc. v. N.Y. State

Dep’t of Health, 969 N.Y.S.2d 743, 745-46 (Sup. Ct. 2013) (upholding regulations

limiting state funds to pay for administrative expenses and executive compensation

under the authority delegated by Public Health Law § 201(1)(o)-(p), to “regulate

the financial assistance granted by the state in connection with all public health

activities” and “receive and expend funds made available for public health

purposes pursuant to law.”); McKinney v. Comm’r of N.Y. State Dep’t of Health,

836 N.Y.S.2d 794, 805-06 (Sup. Ct. 2007) (finding the “general guidelines” to the

commission sufficient to authorize the constitutionality of their recommendations,

and “according [them] great flexibility.”).

II. The Portion Cap Rule Is A Constitutional Exercise Of The BOH’s

Delegated Authority Under A Proper Boreali Analysis.

Under a proper Boreali analysis, the Portion Cap Rule is plainly

constitutional. In reaching the contrary conclusion, the Appellate Division

mistakenly applied a rigid and formalistic analysis, instead of this Court’s flexible

and pragmatic approach. The Appellate Division’s ruling conflicts with New York

precedent repeatedly upholding broad public health delegations and the BOH’s

regulations. As troubling, the Appellate Division’s analysis is fundamentally at

odds with principles of sound administrative governance and poses a dangerous

threat to the ability of New York’s administrative agencies to protect public health

and safety.

16

(A) The Portion Cap Rule Plainly Falls Within The BOH’s

Broad Authority And The BOH Did Not Promulgate The

Rule On A “Clean Slate.”

The Portion Cap Rule plainly falls within the scope of the BOH’s broad

authority. The Rule targets sugary drinks, a major contributor to the city’s growing

obesity epidemic. R.C.N.Y. tit. 24, § 81.53 (proposed) (“Background of the

Amendment: Sugary drinks are a leading driver of the obesity epidemic and are

associated with dangerous chronic diseases”). Not only is obesity a clear public

health concern, as the Appellate Division itself acknowledged, Op. at 27-28, it is

also a “condition hazardous to life and health,” one of the BOH’s specific areas of

regulatory authority. N.Y.C. Charter § 556(c)(2). Instead of writing on a “clean

slate . . . without benefit of legislative guidance,” Boreali, 71 N.Y.2d at 12, the

BOH was acting to implement the Charter’s mandate. Although the Appellate

Division read the Charter to restrict BOH regulation to “inherently harmful and

inimical matters,” Op. at 24-25, the Charter’s grant of power to the BOH is far

broader than that. See N.Y.C. Charter § 556 (granting the BOH power to regulate

through the Health Code “all matters affecting health in the city of New York”)

(emphasis added). Indeed, the BOH’s express power to “exercise control over and

supervise the abatement of nuisances affecting or likely to affect the public health,”

id. at § 556(c)(2) (emphasis added), confirms that the Appellate Division erred in

17

cabining BOH’s authority to regulating only “inherently harmful and inimical

matters.”

Moreover, the Portion Cap Rule would fall within the BOH’s authority even

under the Appellate Division’s unduly restrictive view of the agency’s powers.

Obesity surely is “inherently harmful and inimical” to public health. Leading

public health organizations treat obesity as a disease, and extensive evidence

establishes that obesity constitutes a health epidemic and is a contributing factor

for diabetes, stroke, cancer and heart disease. See, e.g., World Health Org.,

Obesity: Preventing and Managing the Global Health Epidemic 1 (2000),

available at http://whqlibdoc.who.int/trs/WHO_TRS_894.pdf?ua=1 (“Obesity is a

chronic disease, prevalent in both developed and developing countries, and

affecting children as well as adults.”); Nat’l Inst. of Health, Clinical Guidelines on

the Identification, Evaluation, and Treatment of Overweight and Obesity in

Adults xi (1998), available at www.nhlbi.nih.gov/guidelines/obesity/ob_gdlns.pdf

(“Obesity is a complex multifactorial chronic disease that develops from an

interaction of genotype and the environment.”). See also N.Y. State Rest. Ass’n v.

N.Y.C. Bd. of Health, 556 F.3d 114, 134-35 (2d Cir. 2009) (finding a reasonable

relationship between a regulation requiring certain restaurants to post calorie

content information and the stated goal of the regulation to fight obesity based on

evidence that “obesity is epidemic and is a serious and increasing cause of

18

disease.”); N.Y.C. Dep’t of Health & Mental Hygiene Bd. Meeting Hr’g Tr. 27,

Sept. 13, 2012 (Dr. Kansagra) (“There are over 5,000 deaths in New York City

from being overweight and obese, and that is the second leading cause of

premature preventable death, second only to tobacco.”). Given that obesity is

indeed “inherently harmful and inimical” to public health, the BOH must have

authority to regulate conditions that contribute to its development, such as excess

consumption of sugary drinks. See N.Y.C. Charter § 556(c)(2) (authorization to

“supervise the reporting and control of … chronic diseases and conditions

hazardous to life and health”), (c)(9) (authorization to “supervise and regulate the

food … supply of the city”), (e)(4) (authorization to “perform such other acts as

may be necessary and proper to carry out the provisions of this chapter”); see also

N.Y.C. Dep’t of Health & Mental Hygiene Bd. Meeting Hr’g Tr. 28 June 12, 2012

(Dr. Kansagra) (“The single largest cause of increased calories is sugary drinks.”).

(B) The Portion Cap Rule Reflects Appropriate Attention To A

Variety Of Regulatory Factors And The BOH’s Public

Health Expertise.

In promulgating the Portion Cap Rule, the BOH eschewed an across-the-

board draconian ban on all sugary beverages in favor of a more modulated

approach. The BOH sought to discourage excess consumption by capping drink

sizes rather than prohibiting sales altogether. It targeted high-sugar drinks but

exempted drinks that had some health benefit, such as drinks with significant milk

19

content, as well as alcoholic beverages. R.C.N.Y. tit. 24, § 81.53(a)(1) (proposed).

It also limited the Rule to food service establishments that came within the

DOHMH’s inspection jurisdiction. See Record on Appeal, 607-15.

The BOH’s targeted approach reflected the agency’s expert judgment

concerning the best way to advance public health concerns, in a manner consistent

with its jurisdiction. Yet instead of viewing the BOH’s approach as an appropriate

exercise of administrative restraint, the Appellate Division denounced it as a

“compromise measure” that took factors other than public health into account. Op.

at 21. But it is the Appellate Division that erred in failing to recognize the

important relationship between personal consumption and public health, an error

which is at odds with well-established norms of good regulatory design and public

health practice. The Appellate Division’s one-dimensional approach to public

health regulation creates a serious obstacle to the creation of sensible and effective

regulatory regimes in New York. By contrast, an appropriately flexible and

pragmatic application of Boreali allows agencies to wield their expertise in an

effective and tailored fashion.

1. The BOH’s Consideration Of Social, Economic, And

Jurisdictional Factors Was Appropriate And Consistent

With Well-Established Norms Of Regulatory Design.

The Appellate Division’s stance will lead to inefficient and unnecessarily

burdensome regulation. The best regulation entails analysis of the costs as well as

20

the benefits of a rule, tailoring the rule to get the “biggest bang for the buck” —

that is, implementing changes that are likely to generate the greatest health

improvement at the least cost — and taking individual behavior and likely

responses to a rule into account in determining what rule is likely to be the most

effective. Federal administrative law is particularly instructive here, with cost-

benefit analysis long constituting a prominent feature of the federal regulatory

process. See Exec. Order No. 13,563, 76 C.F.R. 3821 §1 (2011) (instructing

agencies to “propose or adopt a regulation only upon a reasoned determination that

its benefits justify its costs,” “tailor its regulations to impose the least burden on

society, consistent with obtaining regulatory objectives,” and “select, in choosing

among alternative regulatory approaches, those approaches that maximize net

benefits”); Exec. Order No. 12,866, 58 C.F.R. 51735 §1 (1993) (“In deciding

whether and how to regulate, agencies should assess all costs and benefits of

available regulatory alternatives” and “design . . . regulations in the most cost-

effective manner to achieve the regulatory objective”); Richard L. Revesz &

Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can

Better Protect the Environment and Our Health 2 (2008) (“Regulators must master

the physiological, economic, engineering, ecological, and social consequences of

regulations in order to make good decisions.”); Cass R. Sunstein, The Cost-Benefit

State: The Future of Regulatory Protection 20-22 (2002) (“[A]n agency should be

21

required to conclude, in ordinary circumstances, that the benefits justify the costs,

and to explain why.”).

Both New York and federal courts have also repeatedly sustained agency

choices to regulate in an incremental fashion. See, e.g., Mass. v. Envtl. Prot.

Agency, 549 U.S. 497, 524 (2007) (citing Williamson v. Lee Optical of Okla., 348

U.S. 483, 489 (1955)) (“Agencies, like legislatures, do not generally resolve

massive problems in one fell regulatory swoop. They instead whittle away at them

over time, refining their preferred approach as circumstances change and as they

develop a more nuanced understanding of how best to proceed.”) (internal citations

omitted); Montalvo v. Consolidated Edison Co. of N.Y., Inc., 460 N.Y.S.2d 784,

790 (App. Div. 1983) (reasoning that regulatory reform by the Public Service

Commission “may take one step at a time, addressing itself to the phase of the

problem which seems most acute to the legislative mind”) (quoting Taylor v.

Consolidated Edison Co. of N.Y., Inc., 552 F.2d 39, 45-46 (2d Cir. 1977)).

Similarly, courts have approved of limitations in regulatory scope based on

limits on an agency’s jurisdiction. See, e.g., Wetlands Action Network v. United

States Army Corps of Eng'rs, 222 F.3d 1105, 1115 (9th Cir. 2000) (holding that in

issuing a permit to fill acres of wetland, the Corps did not have to evaluate

environmental impact of all three phases of the project); Montrose Parkway

Alternatives. Coal. v. U.S. Army Corps of Eng’rs, 405 F. Supp. 2d 587, 597-99

22

(S.D. Md. 2005) (citing Winnebago Tribe of Neb. v. Ray, 621 F.2d 269 (8th Cir.

1980)) (holding that it was not arbitrary and capricious for the Army Corps of

Engineers, in conducting an environmental assessment for a construction project,

to exempt impacts that fell outside of its jurisdiction).

Current theories of regulatory design emphasize the need for regulations to

harness consumer choice in service of regulatory goals. In public health, and many

other regulatory contexts, administrative agencies increasingly are utilizing the

insights of behavioral economics to devise regulatory schemes that encourage

individuals to make better decisions for themselves, rather than impose unpopular

mandatory prohibitions. See Exec. Order No. 13,563, 76 C.F.R. 3821 §1(b), 4

(requiring agencies to “identify and assess available alternatives to direct

regulation, including providing economic incentives to encourage the desired

behavior” as well as “regulatory approaches that reduce burdens and maintain

flexibility and freedom of choice for the public”); Michael P. Vandenbergh,

Amanda R. Carrico & Lisa Schultz Bressman, Regulation in the Behavioral Era,

95 Minn. L. Rev. 715, 741-63 (2011) (detailing how principles of behavioral

economics can and should be incorporated into regulatory regimes); see generally

Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health,

Wealth, and Happiness 24 (2009) (arguing for regulatory approaches that “nudge”

people into making more beneficial decisions by changing default options). The

23

Portion Cap Rule is grounded in this approach, as it seeks to change the default

sugary-beverage serving size to one that fits healthier choices. See R.C.N.Y. tit.

24, § 81.53 (proposed) (“Larger portions lead to increased consumption and calorie

intake. When people are given larger portions they unknowingly consume more

and do not experience an increased sense of satiety . . . . When served more fluid

ounces of a beverage, people drink more without decreasing the amount of food

they eat or experiencing a difference in “fullness” or thirst.”) (internal citations

omitted); Hr’g Tr. 29, June 12, 2012 (Dr. Kansagra) (“[P]eople given beverages in

another study that w[ere] 53 percent larger, consumed about 20 to 33 percent more

without decreasing the amount of food. This all shows that when given larger

portions of beverage[s] we consume more, and we do it without realizing we

consume more.”). “Nudging” consumers to buy smaller sizes of sugary drinks —

instead of barring such drinks outright — promotes public health, respects

consumer autonomy (the consumer can buy a second drink if she really wants to),

and, by reducing consumer backlash, is likely to be more effective in achieving the

public health goal than the more draconian rule favored by the Appellate Division.

The Appellate Division also erred in comparing the exemptions in the

Portion Cap Rule to those at issue in Boreali. To be sure, the Court in Boreali

viewed the exemptions in the PHC smoking ban as evidence of the ban’s

unconstitutionally legislative nature, 71 N.Y.2d at 12, but it did not condemn all

24

tailored regulation. What troubled the Court in Boreali was the combination of a

“comprehensive set of rules [and exemptions] without legislative guidance,” as

well as its belief that the exemptions represented a trade-off of health goals for

economic concerns. Id. at 12-13. But the exemptions in the Portion Cap Rule

were based on public health considerations, such as the potential benefits of some

exempted drinks and the greater likelihood of consumer acceptance of a more

measured restriction.

Amici believe that Boreali requires this commonsense approach to

regulation, which allows agencies to take the costs and benefits of different

regulatory approaches into account even without literal authorization to that effect

by the legislature. Should our reading of Boreali be mistaken, however, that aspect

of Boreali should be overruled. Given the importance of cost assessment and

tailored approaches for sensible regulation, such a blanket restriction on New York

agencies’ exercise of their delegated authority would be unwise. Indeed, a

framework that equates tailored exemptions with unconstitutional lawmaking and

prohibits consideration of costs or the impact on consumer behavior — like the one

left in the Appellate Division’s wake — is hard to square with the goal of reasoned

agency decisionmaking. N.Y. C.P.L.R. § 7803(3) (McKinney 2003) (providing

that administrative determinations may be reviewed in an Article 78 proceeding for

25

whether they were affected by an error of law or were arbitrary and capricious or

an abuse of discretion).

2. The Portion Cap Rule Is The Product Of The BOH’s

Expertise.

The Appellate Division, stating that “[t]he deleterious effects (e.g. obesity)

associated with excessive soda consumption are well-known,” simply erred in

concluding that the BOH did not “bring any scientific or health expertise to bear”

in promulgating the Portion Cap Rule. Op. at 27-28 (emphasis added). The

BOH’s members are legislatively required to have extensive experience and

credentials in the fields of medicine and science, N.Y.C. Charter §§ 551, 553, and

they clearly utilized this expertise in evaluating the arguments for and against the

Portion Cap Rule. See, e.g., Hr’g Tr. 38, Sept. 13, 2012 (Dr. Galea) (“Just to

summarize my read of the 38,000 comments . . . I thought the comments about

evidence were unconvincing. I thought evidence was very clear epidemiologically

that behavioral choice drifts to what is available to us, to all humans, and the

evidence is very clear that sugary drinks contribute to the obesity epidemic.”); id.

at 40-41 (Dr. Richardson) (“I have to admit I was skeptical prior to hearing the

initial proposal and presentations. But I found the arguments made by the

Department and in support of the proposal to be convincing, even compelling, and

those of the opponents, I have to agree with Dr. Galea, they were really not

persuasive at all. I looked carefully particularly at the scientific experts and the

26

literature they cited, and even in the literature that was cited by the opponents,

there were many statements in strong support of developing environmental

interventions to deal with the obesity epidemic.”).

Over the last century, the concerns of public health agencies have evolved

with the changing nature of threats to public health — from cholera to cancer, from

diphtheria to diabetes, from smallpox to smoking. With this evolution of public

health issues has come a transformation in regulation, and the city’s BOH has often

led the way in addressing these modern challenges. It was the first agency to

require certain restaurants to post calorie content information next to menu options.

R.C.N.Y. tit. 24, § 81.50 (2008); see also N.Y. State Rest. Ass’n, 556 F.3d at 134-

35 (upholding the regulation and calling obesity an “epidemic”). Many other

localities have followed suit, passing similar calorie content regulations. See, e.g.,

105 Mass. Code Regs. § 590.009(G) (2010); King County, Wash., Bd. Of Health

Code § 5.10.016 (2013); Trans Fat and Menu Labeling Legislation, Nat’l

Conference of State Legislatures, http://www.ncsl.org/research/health/trans-fat-

and-menu-labeling-legislation.aspx (last updated Jan. 2013) (identifying

California, Maine, New Jersey, Oregon and Vermont as adopting similar measures

by statute). Congress also included a menu labeling requirement as part of the

Affordable Care Act. 21 U.S.C. § 343(q)(5) (2010).

27

The city’s BOH was also the first to ban trans fats in restaurant foods,

R.C.N.Y. tit. 24, § 81.08 (2012), a measure subsequently adopted by the New York

City Council, and again followed by other health agencies. See, e.g., King County,

Wash., Bd. Of Health Code § 5.10.035 (2013). And the federal Food and Drug

Administration recently moved to potentially ban trans fats as well. Tentative

Determination Regarding Partially Hydrogenated Oils; Request for Comments and

for Scientific Data and Information, 78 Fed. Reg. 67169 (Nov. 8, 2013).

Indeed, health agencies in Washington, D.C. and Cambridge, Massachusetts

are currently considering emulating the Portion Cap Rule. See Leon Stafford, Soda

Wars: Cities Seek Restrictions, Taxes to Curb Obesity, Atlanta Journal-

Constitution, Nov. 12, 2012, www.ajc.com/news/news/local/soda-wars-cities-seek-

restrictions-taxes-to-curb-o/nS4b2/. If left to stand, the Appellate Division’s ruling

will call into question the ability of the BOH to address other new public health

threats, to the detriment of the health not just of New Yorkers but the country as a

whole.

(C) The Portion Cap Rule Did Not Improperly Intrude On

Legislative Debate, And Legislative Inaction Should Be

Given Little Weight In The Boreali Analysis.

Finally, the Appellate Division also erred in giving significant weight to the

failure of the state legislature and the New York City Council to address sugary

beverages. Although Boreali considered legislative inaction as a factor in

28

determining the constitutionality of the PHC smoking ban, Boreali involved not

only a much more substantial record of legislative inaction, with over forty

relevant bills failing passage, but those measures addressed exactly the same issue

as the PHC regulation at issue, restrictions on smoking in public places. See

Boreali, 71 N.Y.2d at 6. Here, there had been much less legislative attention paid

to health problems posed by sugary drinks or, more specifically, to a portion cap.

Moreover, since Boreali, this Court has repeatedly stated that legislative failure to

enact legislation similar to a challenged regulation will not result in the

regulation’s invalidation. See Bourquin, 85 N.Y.2d at 787-88 (“[T]hat proposed

legislation similar to [the] Executive Order . . . was not passed does not indicate

legislative disapproval of the programs contemplated by the order. Legislative

inaction, because of its inherent ambiguity, ‘affords the most dubious foundation

for drawing positive inferences.’”) (quoting Clark, 66 N.Y.2d at 190-91)); Higgins,

81 N.Y.2d at 170 (rejecting the argument that “the failed bills alone warrant the

conclusion that the agency has exceeded its mandate.”); Health Facilities Ass’n, 77

N.Y.2d at 348 n.2 (“[W]e ascribe no particular significance to the legislative

inaction in this case.”). Indeed, in Serio, this Court viewed “[t]he Legislature’s

failure to enact time limits, despite having repeatedly considered doing so,” as

“evinc[ing] a legislative preference to yield to administrative expertise in filling in

29

an interstice in the statutory scheme by the setting of such limits.” 100 N.Y.2d at

866 (emphasis added).

This Court’s reluctance to give weight to legislative inaction is appropriate.

Not only is legislative inaction deeply ambiguous, but using legislative inaction as

evidence of administrative overreach creates a troubling incentive — “inviting

opponents of a regulation to introduce legislation doomed to fail to bolster legal

attacks on the regulation’s validity.” Paul A. Diller, Local Health Agencies, the

Bloomberg Soda Rule, and the Ghost of Woodrow Wilson, 40 Fordham Urb. L. J.

1859, 1876 (2013) (citing Boreali, 517 N.E.2d at 1359 (Bellacosa, J., dissenting)

(arguing that the majority’s approach to legislative inaction “will be welcomed by

opponents of all kinds of existing laws” who argue for constricted agency

authority)). Accordingly, amici urge that — as part of its clarification of Boreali —

the Court should take this opportunity to rule that legislative inaction will rarely if

ever be the basis for invalidating a regulation.

However, if legislative inaction is considered to be instructive, the fact that

the City Council has not moved to overturn the Portion Cap Rule should also be

taken into account in assessing the regulation’s consistency with legislative policy

and, thus, its constitutionality.

30

III. The Portion Cap Rule Should Be Sustained Under A

Nonconstitutional Approach That Focuses On Statutory

Authorization And Reasoned Administrative Decisionmaking.

The Portion Cap Rule is also valid under an approach to delegation that

focuses on whether an administrative regulation is statutorily authorized and

represents reasoned decisionmaking. The federal courts take this approach as a

means of permitting broad legislative grants while guarding against administrative

excess. Although such a focus on statutory authorization and reasoned

decisionmaking overlaps with key features of the Boreali inquiry, it avoids a direct

separation of powers assessment in lieu of a nonconstitutional analysis that

emphasizes statutory interpretation and administrative law prohibitions on arbitrary

decisionmaking. A similar approach is suggested in several Boreali decisions, but

not fully developed. Amici urge this Court to expressly direct Boreali towards this

nonconstitutional analysis.

(A) Under Federal Law, Broad Delegations Are Constitutional

And Courts Check Administrative Decisionmaking

Through Nonconstitutional Means

The U.S. Supreme Court “ha[s] ‘almost never felt qualified to second-guess

Congress regarding the permissible degree of policy judgment that can be left to

those executing or applying the law.’” Whitman v. Am. Trucking Ass’ns, Inc., 531

U.S. 457, 474-75 (2001) (quoting Mistretta v. United States, 488 U.S. 361, 416

(1989) (Scalia, J., dissenting)). As a result, the Supreme Court has upheld a

31

number of broad delegations as satisfying the constitutional requirement that

Congress must “lay down by legislative act an intelligible principle to which the

person or body authorized to [act] is directed to conform.” J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 409 (1928); see, e.g., Nat’l Broad. Co. v.

United States, 319 U.S. 190, 225-26 (1943) (upholding delegation to regulate

national airwaves in the “public interest”).

Although the federal courts do not invalidate delegations as

unconstitutionally broad, they guard against excessive administrative assertions of

authority through alternative, nonconstitutional means. Prime among these are

constitutionally-inspired canons of construction, with courts occasionally

construing statutes narrowly to address delegation concerns. See, e.g., Brown &

Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (concluding that Congress

would not “delegate a decision of such economic and political significance to an

agency in so cryptic a fashion”); Cass R. Sunstein, Nondelegation Canons, 67 U.

Chi. L. Rev. 315, 315-16 (2000) (identifying a number of canons of statutory

interpretation as motivated by nondelegation concerns). Another important

mechanism by which the federal courts police delegated authority is administrative

law, in particular the requirement that agencies engage in reasoned

decisionmaking. See Gillian E. Metzger, Ordinary Administrative Law as

Constitutional Common Law, 110 Colum. L. Rev. 479, 491-96 (2010) (arguing that

32

enhanced judicial review of agency decisionmaking under the arbitrary and

capricious standard reflects in part “constitutional concerns with broad delegations

of power to agencies and the attendant risk of unaccountable and arbitrary

exercises of administrative power”); see also Kevin M. Stack, The Constitutional

Foundations of Chenery, 116 Yale L.J. 952, 958-59 (2007) (identifying the

administrative law of contemporary agency explanation as a form of nondelegation

doctrine); cf. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 536 (2009)

(Kennedy, J., concurring in part and concurring in the judgment) (describing the

reasoned decisionmaking requirement as reflecting the danger that “[i]f agencies

were permitted unbridled discretion, their actions might violate important

constitutional principles of separation of powers and checks and balances.”).

In short, the federal courts have switched from policing constitutional

constraints on delegation directly to doing so indirectly, by ensuring that

transferred authority remains adequately controlled. See Cynthia Farina, Statutory

Interpretation and the Balance of Power in the Administrative State, 89 Colum. L.

Rev. 452, 487-88 (1989). The great virtue of this approach is that it allows courts

to avoid the difficult line-drawing that is necessarily attendant on direct

constitutional scrutiny of delegation and better target their attention on exercises of

delegated authority that raise concerns of administrative overreach or arbitrary

decisionmaking.

33

Seeds of a similar emphasis on controlling delegated authority are evident in

this Court’s Boreali jurisprudence.7 Thus, in Serio this Court distinguished

between “the threshold question whether the Legislature has unconstitutionally

delegated its authority to an administrative agency . . . and the related question

whether . . . the agency has exceeded the scope of its constitutionally conferred

mandate,” identifying Boreali as instructive for the latter inquiry. 100 N.Y.2d at

864. Moreover, this Court occasionally has invoked Boreali for the basic

administrative law proposition that an agency lacks authority to adopt a regulation

that violates the terms of a governing statute. See, e.g., Matter of Jewish Home &

Infirmary v. N.Y. State Dep’t of Health, 84 N.Y.2d 252, 260, 261-63 (1994);

Matter of Campagna. v. Shaffer, 73 N.Y.2d 237, 242-43 (1989). Hence, despite

being described in constitutional terms, Boreali is better understood as a

nonconstitutional inquiry whose animating concern is controlling delegation

authority rather than policing separation of powers limits on delegation.

In addition to emphasizing that Boreali is to be applied in a flexible and

pragmatic manner, this Court should underscore Boreali’s nonconstitutional

aspect. It should redirect Boreali’s focus from the scope of the legislative grant of

administrative authority at issue to assessing whether the agency wielded its

7 Indeed, Boreali itself drew parallels to federal jurisprudence on delegation, relying on federal

cases in concluding that “the principle that the legislative branch may not delegate all of its law-

making powers to the executive branch has been applied with utmost reluctance” and stating that

the U.S. Supreme Court’s brief suggestion of a more robust delegation inquiry in the early New

Deal period “has quite rightfully fallen into disrepute.” 71 N.Y.2d at 9-10, n.1.

34

powers reasonably and consistent with governing statutes. This approach would

serve the separation of powers goal of maintaining the elected legislature as the

branch of government that sets policy while at the same time enabling the

legislature to use expert agencies to flesh out the details and apply that policy to

new circumstances, subject to judicial oversight for reasonableness and compliance

with the underlying legislative grant.

(B) The Portion Cap Rule Is Statutorily Authorized And Is Not

Arbitrary Or Capricious

The validity of the Portion Cap Rule is equally clear under such a

nonconstitutional analysis that emphasizes statutory authorization and reasoned

decisionmaking. As discussed above, the Portion Cap Rule is clearly within the

scope of the BOH’s authority under the New York City Charter. Not only does the

Rule fall under the Charter’s general authorization of the BOH to adopt Health

Code provisions that “regulate all matters affecting health in the city of New

York,” but it is also plainly encompassed by the Charter’s more specific

authorizations, such as the grant of power to “control . . . chronic diseases and

conditions hazardous to life and health.” N.Y.C. Charter § 556, 556(c)(2)

(emphasis added). Given this Court’s precedent upholding such broad delegations

to public health authorities, see Part I.B, constitutional delegation concerns do not

support construing these Charter provisions narrowly, as the Appellate Division

erroneously claimed. Op. at 24. But the Rule is also easily sustained under a

35

narrow construction of the BOH’s authority as extending only to “inherently

harmful and inimical matters.” See Part II.A.

It is equally apparent that the Portion Cap Rule represents reasoned agency

decisionmaking and thus complies with New York’s prohibition on arbitrary and

capricious decisionmaking. See N.Y. C.P.L.R. § 7803(3) (McKinney 2003).

Review of agency decisionmaking under the arbitrary and capricious standard is

notably deferential. As this Court has repeatedly stressed, “[a]n administrative

agency’s exercise of its rule-making powers is accorded a high degree of judicial

deference, especially when the agency acts in the area of its particular expertise.”

Matter of Consolation Nursing Home v. Comm’r of N.Y. State Dep’t of Health, 85

N.Y.2d 326, 331-32 (1995) (citations omitted); see also Jorling, 85 N.Y.2d at 382;

N.Y. State Ass’n of Counties v. Axelrod, 78 N.Y.2d 158, 166 (1991) (emphasizing

that “[a]dministrative rules . . . are scrutinized for genuine reasonableness and

rationality in the specific context” and that a “challenger must establish that a

regulation is so lacking in reason for its promulgation that it is essentially

arbitrary.”) (quoting Matter of Marlberg v. Cole, 286 N.Y. 202, 212 (1941))

(internal quotations omitted); Matter of N.Y. Pub. Interest Research Grp. v. N.Y.

State Dep’t of Ins., 66 N.Y.2d 444, 448 (1985) (the agency’s “interpretation, if not

irrational or unreasonable, will be upheld in deference to his special competence

36

and expertise with respect to the insurance industry, unless it runs counter to the

clear wording of a statutory provision”).

The Portion Cap Rule has the rational basis New York law requires. Far

from supporting a conclusion of irrationality, the exemptions and limitations in the

Rule in fact demonstrate the type of sensitivity to contextual factors that New

York’s prohibition against arbitrary and capricious rulemaking demands. These

exemptions and their rationales reflect expert assessments of the comparative

benefits and harms of different sugary beverages. Hr’g Tr. 25, Sept. 13, 2012 (Dr.

Kansagra) (“Fruit juice is excluded in the proposal because fruit juice contains no

added sugar and provides many of the nutritional benefits of the whole fruit from

which it is derived and part of a healthy diet in moderate quantity. Dairy drinks are

excluded because they contain calcium, Vitamin D and potassium, and these are

nutrients frequently found to be deficient, according to the USDA. Dairy also has

an effect of satiety and people tend to feel more full with dairy drinks and they

compensate for those calories they take in later, which doesn’t happen with most

sugary drinks.”). The BOH’s overall concern with the public health consequences

of excessive consumption of sugary beverages is also well-supported by the

scientific literature. Hr’g Tr. 12-13, Sept. 13, 2012 (Dr. Kansagra) (“We looked at

a wide variety of studies and we looked at both before the introduction of the

studies as well as looked at all the studies that were cited in the comments received

37

back . . . . And when you look at all of the literature, the conclusion is that sugary

drinks are linked with weight gain and obesity.”). This case is thus notably

dissimilar from New York Association of Counties, where this Court held that a

state DOH Medicaid regulation was arbitrary precisely because it imposed a

“universal,” “across-the-board,” and “blanket” reduction in Medicaid rates without

consideration of relevant factors. 78 N.Y.2d at 167-68.

The BOH’s effort to limit the Rule’s application to entities within its

oversight jurisdiction is likewise evidence of appropriate administrative restraint

and contextual sensitivity, not grounds for complaint. See Record on Appeal, 607-

15; Hr’g Tr. 25, Sept. 13, 2012 (Dr. Kansagra) (“Alcohol is not regulated under

this proposal because that is regulated by the state. Non-food service

establishments are not regulated for the same reason, jurisdiction lies with the

state.”). See also Montrose Parkway Alts. Coal., 405 F. Supp. 2d at 597-99

(finding agency did not act arbitrarily or capriciously in not considering

environmental impacts that fell outside the agency’s jurisdiction). The U.S.

Supreme Court recently emphasized that even an agency’s assertion of broader

jurisdiction should be reviewed under ordinary administrative law principles and

qualifies for deference if it represents a reasonable interpretation of an ambiguous

statute. See City of Arlington v. FCC, 133 S. Ct. 1863, 1869-73 (2013). Surely the

BOH’s reasonable reading of its jurisdictional limitations deserves similar respect.

38

CONCLUSION

For the foregoing reasons, the order of the Appellate Division should be

reversed.

39

Dated: April 22, 2014

New York, NY

Respectfully submitted,

________________________

Gillian E. Metzger

Center for Constitutional Governance

Columbia Law School

435 West 116th Street

New York, NY 10027

RICHARD B. PRESS

WILLIAM K. RAWSON

LORI ALVINO MCGILL

MICHAEL E. BERN

KALA SHERMAN-PRESSER

ANDREW D. PRINS

LATHAM & WATKINS LLP

555 Eleventh Street, NW, Suite 1000

Washington, DC 20004

Telephone: (202) 637-2200

Facsimile: (202) 637-2201

rick.bress@lw.com

JAMES E. BRANDT

LATHAM & WATKINS LLP

885 Third Avenue

New York, New York 10022

Telephone: (212) 906-1200

Facsimile: (212) 751-4864

james.brandt@lw.com

Counsel for Plaintiff-Petitioner-

Respondent The American Beverage

Association

JAMES W. QUINN

SALVATORE A. ROMANELLO

GREGORY SILBERT

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, New York 10153

Telephone: (212) 310-8000

Facsimile: (212) 310-8807

james.quinn@weil.com

Counsel for Plaintiff-Petitioner-

Respondent The National Restaurant

Association

STEVEN F. MOLO

BEN QUARMBY

MOLOLAMKEN LLP

540 Madison Avenue

EVAN H. KRINICK

BARRY I. LEVY

BRIAN L. BANK

RIVKIN RADLER, LLP

926 RXR Plaza

Uniondale, New York 11556-0926

Telephone: (516) 357-3483

Facsimile: (516) 357-3333

evan.krinick@rivkin.com

Counsel for Plaintiff-Petitioner-

Respondent Soft Drink and Brewery

Workers Union, Local 812, International

Brotherhood of Teamsters

MATTHEW N. GRELLER

MATTHEW N. GRELLER, ESQ., LLC

75 Clinton Avenue

40

New York, New York 10022

Telephone: (212) 607-8170

Facsimile: (212) 607-8161

smolo@mololamken.com

Counsel for Plaintiffs-Petitioners-

Respondents The New York Statewide

Coalition of Hispanic Chambers of

Commerce and The New York Korean-

American Grocers Association

Millburn, New Jersey 07041

Telephone: (917) 345-0005

Facsimile: (973) 327-2472

matt@mattgreller.com

Counsel for Plaintiff-Petitioner-

Respondent The National Association of

Theatre Owners of New York State

NEW YORK CITY LAW DEPARTMENT

100 Church Street

New York, New York 10007

Attorneys for appellants