by Tom Farley
Susan Kansagra had also sent the board members a thirteen-page memo grouping the public comments into themes, with the health department’s responses, and now she took thirty minutes at the witness table to go through them. She ended with, “If you look at the other public health measures that have been put in place, things like smoke-free restaurants, restrictions on trans fat, removal of lead in paint, these were also met with opposition from industry as well as the public. And if you look at some of the headlines from a few years ago, they could very easily be written today, but those things are now widely accepted.” Because the critics had proposed no changes to the rule, neither did she.
Then the board members got their chance to weigh in. Sandro Galea, an epidemiologist from Columbia University with an elegant, intellectual manner, said that after “I spent many lovely hours” reading the thousands of comments, “I thought the evidence was very clear epidemiologically that behavioral choice drifts to what is available to us, to all humans.” And “the argument about choice is also a false argument. . . . As consumers, our choice is already ultimately set by the food service establishment, and all this is doing is creating the bounds of those choices, which is exactly the role of the health department.” Lynn Richardson, an emergency room physician, said, “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 . . . they were really not persuasive at all.” She and other board members said they were moved by seeing in their practice so many people, especially blacks and Latinos from poor neighborhoods, suffering from obesity and diabetes. Joel Forman, a pediatrician who saw many children from East Harlem and the South Bronx, said, “The problems we deal with every day are obesity, obesity, asthma, obesity, asthma.” He said, “I can’t imagine the board not acting on some other problem that was killing five thousand people a year.” Only Sixto Caro differed, again raising the concern about the additional cost of buying two 16-ounce sodas instead of one 32-ounce soda, and criticizing the rule as being “not comprehensive enough.”
At the end, all board members except Sixto Caro voted in favor. To give the restaurants and soda companies plenty of time to make changes, the rule would go into effect in six months.
After the vote, Mayor Bloomberg held a triumphant press conference with Bruce Ratner, the developer who was just finishing building the Barclays Center, a sports arena in downtown Brooklyn. Ratner had agreed to voluntarily adopt the 16-ounce limit from the day it would open. When a reporter asked Bloomberg about the soda industry’s well-financed opposition, he came back at her. “I’ve spent $600 million on tobacco control, and I’m looking for another cause. Now how much did you say they were spending again?”
• • •
Coca-Cola made good on both of Steven Cahillane’s threats. In October 2012, a month after the Board of Health passed the portion cap, the powerhouse law firm Latham & Watkins, working for the American Beverage Association, sued to block the rule. The ABA was joined in the lawsuit by others that made money from big sodas: the National Restaurant Association (which represents the big chains) and the National Association of Theater Owners of New York State. And they brought along the New York State Coalition of Hispanic Chambers of Commerce, the New York Korean-American Grocers Association, the Soft Drink and Brewery Workers Union, and Local 812 of the Teamsters. The Board of Health did not have the authority to pass the portion rule, their lawyers wrote, and the rule was “arbitrary and capricious in its design and application.” The law firm channeled the public relations war into the courtroom, referring to the rule as “The Ban,” capitalized, and prominently citing the ninety-thousand-name petition and polls showing that a majority of New Yorkers opposed it.
Coca-Cola brought race into the courtroom too. The corporation’s longtime law firm King & Spalding delivered an amicus brief, signed by the NAACP and the Hispanic Federation. These organizations had “fought long and hard to protect and enliven the voices of their community members in the political system,” they wrote. But with the portion rule, the “Board of Health and unelected appointees, like Commissioner Farley, circumvented those voices, along with the voice of millions of New Yorkers, when the board told New Yorkers that it would selectively and unfairly harm small and minority-owned businesses.” The NAACP had deep ties to Coca-Cola and had recently received tens of thousands of dollars from Coke for a health education program. The former president of the Hispanic Federation had just taken a job at Coca-Cola.
Then in November, Cahillane stood with Chicago mayor Rahm Emanuel and officials from PepsiCo and Dr Pepper Snapple Group to announce that the soda companies were giving that city $5 million. The money would go for a wellness competition between city employees in Chicago and San Antonio. In return, Emanuel promised to kill a proposed sugary drink tax and not pursue a New York City–style portion cap. Emanuel seemed to blame overweight people for their problems. “If you basically put aside personal responsibility,” the mayor said, “you’re missing the core ingredient for improving health care outcomes.” It was the first of three payoffs that Coke would make to Chicago over the next nine months. In the second, it gave the city $3 million for nutrition and exercise classes. In the third, Emanuel put images of Coke products on 50,000 blue household recycling carts bought with $2.6 million from the Coca-Cola Foundation.
Tom Merrill was, in a way, relieved when he read the legal papers. The soda companies’ line of attack was what he had predicted. It was based on the 1987 case Boreali v. Axelrod, in which the state’s Public Health Council, a group of experts answering to the state health commissioner, had tried to ban smoking in restaurants with more than fifty seats. The state court of appeals struck down the rule, saying it amounted to legislation, which only the state legislature could enact. In its opinion, the court laid down criteria for how future judges could distinguish legislation from regulations.
Merrill and the rest of the city’s lawyers were convinced that the Boreali decision didn’t apply to the New York City Board of Health. Ever since the 1800s, the state legislature had given the board unique authority—often called by the courts “legislative”—to pass rules on health that had the force of law; the Public Health Council didn’t have that authority. The board used its authority to manage various crises, like cholera and yellow fever, that the legislature was hopeless at handling. The state’s highest court had affirmed this authority in 1868 when the board regulated the slaughtering of cattle, in 1965 when it fluoridated the city’s drinking water, and in 1976 when it required landlords to install window guards to protect toddlers from falls. But just in case, Merrill had made sure to draft the portion cap rule to meet the Boreali criteria.
The case landed on the desk of Judge Milton Tingling, a fifty-nine-year-old African American from the Washington Heights neighborhood. Judge Tingling was known for his sympathy and patience, but his rulings signaled that he was deeply skeptical of government power. Delayed by mix-ups in the court and by Hurricane Sandy, the case didn’t come to him until early 2013. By that time, both legal teams were in a rush to get a decision before the rule went into effect that March.
At the oral argument, Susan Kansagra, watching from the gallery, saw “our folks against this wall of corporate-looking lawyers.” Merrill presented the city’s argument that the portion rule was rational and within the board’s traditional authority. When the other side’s lawyers spoke, they got a little overheated. As recounted by the New York Times:
Mr. Brandt, the industry lawyer, at one point suggested the soda rules would lead to a slippery slope of Orwellian government micromanagement.
“What comes next?” Mr. Brandt asked. “Red meat twice a week, but no more? You can buy your bacon and cheese in the morning, but no eggs on it? No jaywalking, because you might get hurt, if you jaywalk?”
At this, Justice Tingling, who rarely spoke during the proceedings and betrayed few signs of
his thinking on the case, chose to weigh in.
“For the record, counsel, jaywalking is illegal,” the judge said, smiling. “But I got you.”
• • •
On March 11, 2013, the day before the portion rule was to go into effect, Judge Tingling slapped the Board of Health down hard. The Boreali criteria applied to the Board of Health, he ruled, and on those criteria the portion rule failed. But he went far beyond that. The rule was “arbitrary and capricious,” he wrote, riddled with “loopholes” like free refills. And even more breathtaking: the Board of Health had the authority to prevent only “communicable, infectious, and pestilent diseases.” “To accept the respondents’ interpretation of its authority granted to the Board by the New York City Charter would leave its authority to define, create, mandate, and enforce limited only by its own imagination,” Tingling concluded. “The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar sweetened beverages.”
At City Hall, Bloomberg was furious. At the health department, we were horrified. Tingling had done far more damage than just stop the portion rule. His opinion that the board’s authority was limited to infectious diseases, if it stood, would destroy its authority to protect New Yorkers from the most important health problems of our time. It meant the board could not have banned trans fat, required calorie labeling, or banned lead in paint. According to Tom Merrill, the ruling “would pretty much have invalidated most of the Department.” I could blame the soda companies, the judge—or myself—for that, but regardless, the future of public health in New York City was now in deep trouble.
The city lawyers were just as upset but not despairing. We had a 90 percent chance of winning on appeal, they said—the law was clearly on our side.
I was beginning to take a different lesson. At about the same time, we had a resounding win in an unrelated legal case that the city lawyers thought we were likely to lose. Court decisions appeared to depend entirely on the whims of whatever judge drew the short straw. The Boreali criteria were vague enough that a judge could read them whatever way he wanted. This case felt like a crapshoot.
The flood of news stories about the ruling took a different angle, one that was nearly as bad. Tingling’s verdict was strictly about which body of government, the Board of Health or the City Council, had the authority to pass a portion limit, but his words were so harsh that they implied that a soda portion limit was morally wrong. That was the tone of the soda companies’ PR blitz, and that was the tone that the press now broadcast around the world. The Times captured it: “It would have amounted to a tax on the poor, said some. It would have had little effect anyway, noted others, because people would still have been allowed free refills. It was un-American, said others still, for was this not the country of freedom, more or less, of choice?” The polls showed New Yorkers’ opinions followed, with support for the “ban” dropping from 46 percent two weeks before the ruling to 39 percent a month after. All told, the judge’s decision couldn’t have been worse.
Mayor Bloomberg came out defiant. Obesity was “a health crisis,” he said to reporters. “People are dying every day. . . . This is about real lives.” He fired at Tingling. “The judge is totally in error in the way that he interpreted the law,” he said. The city would win on appeal. “Being the first to do something is never easy.”
And to show how reasonable the rule was, the City Hall press office organized a press conference next day at Lucky’s Café, a closet of a deli in midtown Manhattan. The owner, Greg Anagnostopoulos, had agreed to limit his soda cups to 16 ounces voluntarily. Bloomberg stood amid a pack of supporters, including a doctor, a pastor, Harlem children’s advocate Geoffrey Canada, and mayoral candidate Bill de Blasio, and charged forward. “Despite yesterday’s temporary setback, I don’t think that there is any doubt that the momentum is moving in our direction. . . . While the legal case plays out, the conversation that has started about the dangers of large sugary drinks has prompted many people like Greg to take action.” When a reporter asked if he would continue his “anti-obesity crusade” after his term was over, Bloomberg snapped back, “You can take that to the bank.”
• • •
The city’s appeal in the sugary drink portion cap case took place in June 2013, in the ornate Beaux Arts courtroom of the appellate division on the corner of Madison Avenue and 25th Street. This time the case was heard by a panel of five judges.
It was ugly. The soda companies’ lawyer was as smooth as silk. The judges, for the most part, quietly heard him out as he characterized the rule as a loophole-filled, irrational power grab by the Board of Health. The city’s lawyer, Fay Ng, was steeped in the law but, unlike Tom Merrill, didn’t work in the health department and hadn’t spent months studying the health details. She had barely opened her mouth before the judges pounced. How did the Board of Health decide on 16 ounces? Wasn’t that arbitrary? What was the justification for including sweetened teas but not milk shakes? What nutritional value did milk shakes have? “They didn’t even wait for her response,” said Susan Kansagra, who sat cringing in the gallery. “They were just boom boom boom asking questions.” The hearing “was less about the legal case than it was about the policy and what was in the press,” said Maura Kennelly.
The courtroom had become a mirror for the public debate, and the public debate—shaped by the PR barrage of the soda companies—was leaning hard against us. “We definitely lost the messaging,” said Tom Merrill. “It became this liberty interest.”
“And if you can’t get past that as a judge or as a panel of judges,” said Kennelly, “then that lens is how you are going to view the legal arguments.”
The judges ruled against us. Their ruling was narrower than Judge Tingling’s—it offered no talk about the Board of Health having authority only over “communicable, infectious, and pestilent diseases”—but it was nearly as bad. The Board of Health, they decided, was just another administrative agency. And then they decided that the Boreali criteria invalidated the rule. The rule must be solely about health, and the judges stretched to show that this rule wasn’t. For example, I had commented at a board meeting that the rule might reduce obesity-related medical costs; the judges counted that as the board straying from health into economic considerations. The exceptions for fruit juice and milk-based beverages, and the fact that the rule did not apply to grocery stores, were not, in their view, health-based but instead “a compromise of social and economic concerns, as well as private interests.”
As a sort of consolation prize, the judges wrote that “nothing in this decision is intended to circumscribe [the health department’s] legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restriction. . . . Within the limits described above, health authorities may make rules and regulations for the protection of public health.”
To us in the health department, it wasn’t much consolation. If these judges’ ruling were to stand, the Board of Health still could not have passed crucial rules like the ban on lead paint, which had probably saved tens of thousands of children from lead poisoning. According to the judges, the board could act only as an administrative agency, under the instructions of the City Council.
We had one more shot, in the state’s highest court. I asked the city’s lawyers what they thought our chances were of winning there. Better than fifty-fifty, they said. I didn’t believe them.
19
“It keeps me up at night.”
It was in the tiny kitchen of Lucky’s Café, just before Mayor Bloomberg’s defiant press conference on the soda portion cap, that we started down a new track on smoking. Jim Gennaro, a talkative council member from Queens whose mother had died of lung cancer, had come to show his support for the portion rule. He collared me by the walk-in refrigerator. What did I think, he asked, about raising the legal sales age for cigarettes from eighteen to nineteen? Four states, including New Jersey,
had already done it, as had neighboring Nassau and Suffolk Counties.
Gennaro was floating this proposal at a critical moment for our own antismoking ideas. It had been eight months since Mayor Bloomberg had agreed to prohibit the display of cigarette packs and to ban discount coupons for cigarettes. The next step for these two ideas would be to get backing from Speaker Christine Quinn, but between Hurricane Sandy and other issues with the City Council, it had taken months just to get the ideas in front of her. As 2013 began, with the mayor’s race just a few months away, I was starting to lose hope.
To my amazement, when Speaker Quinn finally heard the ideas, she liked both. Long afterward I asked her why she was willing to push the bills against the opposition of the bodegas when she had so much at risk in the mayor’s race. “Yeah, the bodega people are against you,” she told me later, but that didn’t bother her. “One, there were some things I just wasn’t going to let politics be a part of. . . . And then two, just to make me not sound like a saint . . . people hate smoking. If you overlay primary voters with smoking, it’s not really that controversial.” She was running for mayor as The Candidate Who Gets Things Done. These were ideas that she wanted to claim.
In March 2013, when we were in the kitchen of Lucky’s Café, we were preparing to unveil these two first-in-the-nation antismoking bills. When Gennaro told me his age-nineteen idea, my first reaction was that I just didn’t want it to screw the two bills up.