Baylen Linnekin on the NYC Soda Ban’s Well-Deserved Defeat

Last week, the New York State Court of
Appeals—the state’s highest court—dealt a final death
blow to New York City’s reviled soda ban. The decision,
which upheld two lower court rulings, drew an important line in the
sand across which New York City’s activist health department may no
longer cross.

Though the majority decision largely reiterates the strong
denunciation by the lower courts of New York City’s soda ban, the
dissenting opinion issued by the court last week is worth a look
for the unprecedented lengths it goes in a failed attempt to
justify and uphold the soda ban, writes Baylen Linnekin.

To do so, the dissent, authored by Judge Susan P. Read, argues
that rules adopted by the city health department are on par with
state law.

“If a regulation promulgated by the Board in the Health Code
conflicts in some direct way with a local law, the Board’s action
trumps the [City] Council’s,” she writes.

That’s downright chilling. Under that interpretation, the health
department would have the authority to mandate any number of
health-related rules by which city residents must abide. The health
department could, for example, mandate early bedtimes for New York
City residents. The city never sleeps? It does now. And the city
council would be completely powerless to do anything about it,
writes Linnekin.

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