New York’s Top Court Just Narrowed the Case That Spelled Doom for Bloomberg’s Soda Ban

In that case, known as Boreali, the Court of Appeals overturned a 1986 state regulation that banned smoking in many public places, including schools and hospitals. The state Public Health Committee had overstepped its authority by implementing the ban without a law explicitly allowing it to do so, the court ruled. Legislative attempts to enact a similar smoking ban had failed, the majority opinion noted, and the Public Health Committee had weighed economic factors, rather than health alone, in structuring the ban.

The ruling created a unique method to challenge government actions and regulations that remained in use until today.

“The ‘sword of Boreali’ as we called it, has hung over the NYC Board of Health,” Mary Bassett, a former commissioner of both the city and state health departments, told New York Focus in an email. “It was a damaging ruling, tying the hands of the BoH regarding more robust actions that protect health.”

In 2014, Boreali was used to strike down former Mayor Michael Bloomberg’s “soda ban,” an intensely controversial regulation limiting soda sizes to 16 ounces. Two years later, a state appeals court used it to strike down another regulation that required toddlers attending city-regulated daycares and preschools to get flu shots. Though the Court of Appeals eventually overturned the latter ruling, finding that the city had acted within its powers, New York City was forced to spend years defending the measure in court.

Boreali has also been used in attempts to overturn rules beyond public health, such as a regulation meant to ensure that sellers of life insurance policies act in their customers’ best interest. That attempt was ultimately rejected by the Court of Appeals.

“Anytime we have a client who wants to look at challenging some agency decision for one reason or another, we always look at Boreali,” said Robert Rosborough, an attorney who argues cases before the Court of Appeals and authors a blog focused on its rulings. “Boreali has for years provided a basis to say to agencies, ‘You’re stepping beyond the bounds of what the legislature has allowed you to do.’”

Rolling Boreali back has been a goal of Wilson’s for years. In a 2018 dissent, he noted that no other state had a similar test — “and for good reason: it is unhelpful.” If Boreali was not to be eliminated entirely, he wrote, “We should make sure its cage is small.”

His ruling last month sought to achieve that goal. He noted that the original Boreali decision focused on a law that had granted the Public Health Committee “exceedingly broad” authority to “deal with any matters” affecting public health, which could include just about any human activity. The courts wanted to place a limit somewhere, and so overturned the smoking ban.

The law at issue in Matter of Stevens, on the other hand, was fairly narrow: It permitted the state’s Commission on Forensic Searches to write regulations related to DNA searches. Since there was no broad grant of power, Boreali didn’t apply and couldn’t be used to overturn the regulations, Wilson wrote.

That logic could make it difficult to use Boreali against regulations that aren’t based on similar wide-ranging grants of authority, which are rare in New York law.