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With regard to the exemption of certain FSE’s (i.e., grocerymarkets, 7-11s, bodegas, etc.), the DOHMH does not deny that the exemption has no relationship to health-related concerns. Still, the agency argues that it was not based on impermissible reasons, but on the agency’s allegedly reasonable view that such FSEs cannot be regulated by the Agency under the MOU signed with the state’s Department of Agriculture. However, the Board’s claim that the MOU tied its hands is belied by the fact that the agency [the Board of Health] has previously used its regulatory authority to promulgate city-wide health rules that regulate all FSEs (see e.g. 24 RCNY HealthCode 181.07) [city-wide regulation of common eating and drinking utensils]; 24 RCNY Health Code 71.05) [city-wide prohibition on the sale of “any food . . . which is adulterated or misbranded”]). Moreover, the MOU envisions “cooperative efforts between the two agencies [to] assure comprehensive food protection” and to avoid gaps in food surveillance.” Yet, the agency offers no evidence of any prior attempt to coordinate witht he Department of Agriculture on the Portion Cap Rule. The failure to obtain such expansion resulted in a ban that includes exceptions which necessarily favor some businesses and products at the expenses of others. Accordingly, the selective restrictions enacted by the Board of Health reveal that the health of the residents of New YorkCity was not its sole concern. If it were, the “Soda Ban” would apply to all public and private enterprises in New York City. By enacting a compromise measure — one that tempered its strong health concerns with its unstated but real worries about commercial well-being, as well as political considerations — the Board necessarily took into account its own non-health policy considerations. Judged by its deeds rather than by its explanations, the Board of Health's jurisdictional rationale evaporates.
Judge Renwick writing for a unanimous decision of all four Appellate judges, my emphasesWhat's important here is not just that the mayor could have extended the cap to delis, bodegas, groceries and 7-Elevens. It's that the mayor and the Board of Health lied about it to the public.