PERSPECTIVE Can Government Regulate Portion Sizes? Jennifer L. Pomeranz , J.D., M.P.H. , Kelly D. Brownell , Ph.D. N Engl J Med 371:1956 - 1958 | November 20 , 2014 External cues can have powerful effects on peoples eating habits. One thoroughly studied environmental trigger is portion size: studies show that larger portions encourage greater consumption of a range of foods and beverages.1 This effect is especially problematic when it comes to sugar-sweetened beverages, which are associated with obesity and diabetes and are being sold in ever-increasing portion sizes. The original Coca-Cola bottle was 6.5 oz (190 ml); many bottles intended for individual consumption are now triple that size. There are no government restrictions on portion sizes for food prepared and consumed outside the home, which accounts for more than 43% of Americans food expenditures.2 A regulation enacted by the New York City Board of Health that limited portion sizes of sugar-sweetened beverages was struck down in 2014.3 Although this case applies only in New York State, the precedent it set may help address fundamental questions about whether restricting food and beverage portion sizes is defensible on public health and legal grounds in other U.S. jurisdictions. The New York City Board of Health adopted the portion-cap rule in 2012, limiting the size of sugar-sweetened beverages sold in food-service establishments — which are licensed by the city — to 16 oz (470 ml).4 Grocers and convenience stores are regulated by New York State and hence were not subject to the rule. The ordinance applied to calorically sweetened beverages with more than 25 calories per 8 oz (235 ml) and excluded drinks containing more than 50% milk or milk substitute.4 Consumers were free to purchase multiple drinks, and sellers could offer free refills. State and national nonprofit and labor organizations representing food-service establishments and the beverage industry sued the city to prevent enforcement of the law. The states highest court, the New York Court of Appeals, ultimately struck down the ordinance.3 The first industry complaint in the litigation was that the Board of Health exceeded the authority granted to it by the City Charter and thus improperly acted in a legislative capacity — an argument based on the separation of powers. The Board of Health is part of an administrative agency in the executive branch of the government, and therefore it can act only within the parameters set forth by the legislative body. According to the courts majority opinion, the Board exceeded this authority because the regulation interfered with activities preferred by large numbers of people and required “complex value judgments” concerning public health, personal autonomy, and economics.3 The court found that the Board of Health made difficult choices among “broad policy goals” and engaged in a form of “policy-making,” an activity reserved for legislatures, rather than standard agency “rule-making,” which consists of “subsidiary policy choices” based on an enabling legislations requirements.3 The second industry argument was that the ordinance was “arbitrary and capricious” and hence not rational. States — and to the extent permitted, local governments — possess the authority to enact laws to protect, preserve, and promote the health, safety, and welfare of their citizens (known as the “police power”), as long as such regulation has a rational basis. The Court of Appeals did not address this argument because it struck down the law on the basis of the separation-of-powers issue. According to the dissenting opinion, however, “the Rule easily passes this test.”3 Neither lower court had found that regulating portion sizes of sugar-sweetened beverages was irrational (although both courts similarly struck down the law). The trial court found that the exceptions in the rule, outlined above, were arbitrary, and the appellate division did not address this issue but noted that the “deleterious effects (e.g., obesity) associated with excessive soda consumption are well-known.”5 Legally, the rule remains viable because there is a valid argument that regulating portion sizes of a known public health threat such as sugar-sweetened beverages is rational. The binding outcome of the case is that administrative agencies in New York State cannot pass a serving-size regulation without a legislative mandate. The state legislature or the New York City Council could still pass a similar measure, as could any state or local legislature in the United States. Regulatory agencies can enact portion-cap rules if they have broad authority or are granted express authority by their legislatures; otherwise, they, too, risk a court finding that they encroached on policymaking activities reserved for the legislative branch. State and local governments have not yet attempted to regulate portion sizes for public health reasons, but they have successfully done so for other purposes deemed rational by the Supreme Court. In several cases from the early 20th century, the Court upheld states ability to enact laws related to the weight, measure, and ingredients of foods, calling such regulation a valid and common exercise of the police power. For example, in 1913 the Court upheld a Chicago ordinance prescribing the standard size of bread loaves, and in 1916 it upheld a North Dakota statute restricting the weight of lard containers, in both cases in order to prevent fraud and despite consumer demand for products of different sizes and businesses willingness to supply them. In a precedent with implications for the argument that New York City was “singling out” sugar-sweetened beverages, in 1981 the Supreme Court upheld a Minnesota law that banned plastic — but not cardboard — milk containers as a way of addressing environmental concerns regarding plastic. Although these ordinances were enacted for different reasons, the public health rationale, which supports a serving-size restriction for sugar-sweetened beverages, is also well established as valid under the police power. Jurisdictions seeking to address portion size can learn from New York City. Although opposition groups argued that the ordinance was a slippery slope that could lead to portion-size restrictions on other foods, the targeting of another type of food or beverage without robust public health data would most likely not be deemed rational by a court. In addition, legislatures need not limit portion-size restrictions to food-service establishments. Retailers that sell large fountain beverages (such as 7-Eleven) could be similarly covered under such laws to avoid challenges based on claims of irrationality. Conversely, governments may not wish to prevent grocery sales of multiple-liter bottles of sugar-sweetened beverages, which may be consumed at home, by families, or over time, because such a ban would not be supported by the same rationale behind addressing large portion sizes consumed in one sitting away from home. Jurisdictions could also independently determine whether 16 oz is the appropriate size to target by conducting studies and surveys and engaging with local businesses. Finally, methods of enforcing portion-cap rules could be integrated into current inspection procedures to minimize administrative burdens. Jurisdictions could license retailers and require compliance with the law as a condition of maintaining the license, with licensing fees covering enforcement, inspection, and paperwork costs. Political obstacles are important, as the dissent in the New York City case argued: the law was simply “unpopular.”3 Beverage manufacturers contributed to this sentiment with a major public-relations campaign. In the future, advocacy groups and grassroots movements could conduct surveys to ascertain the most promising way to frame the messages conveyed about such a policy to gain the support of the public and elected officials. Other nutrition-related policies, including revised school-meal standards, menu labeling, and taxes on sugar-sweetened beverages, were initially met with skepticism and industry opposition, but government actions have led to their greater acceptance. It is quite possible that the history of portion-size limits will follow the same course. Limiting portion sizes is a promising frontier in nutrition policy, with legally viable options available to support public health. Disclosure forms provided by the authors are available with the full text of this article at NEJM.org. References DA Cohen, M StoryMitigating the health risks of dining out: the need for standardized portion sizes in restaurants.Am J Public Health2014;104:586-590 U.S. Department of Agriculture, Economic Research Service. Food consumption and demand: food away from home (ers.usda.gov/topics/food-choices-health/food-consumption-demand/food-away-from-home.aspx#.VBcdRaP4ei0). In the matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. the New York City Department of Health and Mental Hygiene, No. 134 New York Court of Appeals (2014). New York City Department of Health and Mental Hygiene, Board of Health Notice of Adoption of an Amendment (§81.53) to Article 81 of the New York City Health Code. New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 110 A.D.3d 1 (NY App. 1st Dept 2013). Source Information From the Department of Public Health and the Center for Obesity Research and Education, Temple University, Philadelphia (J.L.P.); and the Sanford School of Public Policy, Duke University, Durham, NC (K.D.B.).
Posted on: Mon, 24 Nov 2014 07:46:33 +0000
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