729 F.3d 937 (2013)

[941] Michael Tenenbaum (argued), The Tenenbaum Law Firm, Santa Monica, California, for Plaintiffs-Appellants.

Stephanie F. Zook (argued), Deputy Attorney General; Constance L. LeLouis, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, Sacramento, California, for Defendants-Appellees.

Melissa Grant, (argued) and Arnab Banerjee, Capstone Law APC, Los Angeles, California; Tiffany Hedgpeth, Jeremy Esterkin, and Bryce Woolley, Bingham McCutchen LLP, Los Angeles, California, for Amici Curiae.

Before: HARRY PREGERSON and RAYMOND C. FISHER, Circuit Judges, and WILEY Y. DANIEL, Senior District Judge.^[1]

OPINION

PREGERSON, Circuit Judge:

Plaintiffs produce and sell foie gras, a delicacy made from fattened duck liver. To produce their foie gras, Plaintiffs feed their ducks through a tube inserted directly in the ducks' esophagi. In July 2012, California Health & Safety Code § 25982 [942] came into effect. The statute bans the sale of products that are the result of force feeding birds to enlarge their livers beyond normal size. We are called upon to review the district court's denial of Plaintiffs' motion to preliminarily enjoin the State from enforcing § 25982. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.

FACTUAL BACKGROUND

Appellants Association des Éleveurs de Canards et d'Oies du Québec (the "Canadian Farmers") and HVFG LLC ("Hudson Valley") are non-California entities that raise ducks for slaughter and are producers and sellers of foie gras. Appellant Hot's Restaurant Group, Inc. ("Hot's Kitchen") is a restaurant in California that sold foie gras before § 25982 came into effect (collectively, "Plaintiffs").

Hudson Valley and the Canadian Farmers raise Moulard ducks. Moulard ducks are a hybrid of Muscovy male ducks and Pekin female ducks. They are bred for their capacity of ingestion and fat storage in their livers. In addition to foie gras, Hudson Valley and the Canadian Farmers produce and sell breasts, legs, fat, bones, offal, and feathers from their Moulard ducks.

Generally, Moulard ducks are raised for foie gras through the following process. The Canadian Farmers and Hudson Valley take one-day-old ducks from the hatchery to breeding farms. There, the ducks are raised until they are fully grown, a process that generally takes eleven to thirteen weeks. For the first four weeks of their lives, the ducks eat pellets from feeding pans that are available to them twenty-four hours a day. In the next stage, which lasts one to two months, the ducks eat different pellets from feeding pans that are available to them twenty-four hours a day. For the next two weeks, the ducks continue to eat pellets from feeding pans that are available to them at only certain times during the day. In the final stage, called gavage, which lasts between ten to thirteen days, the ducks are hand-fed by feeders who use "a tube to deliver the feed to the crop sac at the base of the duck's esophagus."

STATUTORY BACKGROUND

The statutory provision Plaintiffs seek to enjoin, § 25982, is within the statute entitled "Force Fed Birds." Cal. Health & Safety Code §§ 25980 et seq. Section 25982 states: "A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size." Id. § 25982. Section 25981 further provides: "A person may not force feed a bird for the purpose of enlarging the bird's liver beyond normal size, or hire another person to do so." Id. § 25981.^[2]

Sections 25981 and 25982 became operative on July 1, 2012. The California Legislature delayed the effective date of the statutes from January 1, 2005 to July 1, 2012 "to allow a seven and one-half year period for persons or entities engaged in agricultural practices that include raising and selling force fed birds to modify their business practices." Id. § 25984(c).

PROCEDURAL BACKGROUND

The day after § 25982 came into effect, Plaintiffs filed a lawsuit to enjoin Defendants-Appellees Attorney General Kamala Harris, Governor Edmund Brown, and the [943] State of California (collectively, the "State") from enforcing the statute. Plaintiffs argue that § 25982 is unconstitutional because it violates the Due Process Clause and the Commerce Clause of the United States Constitution.

Plaintiffs applied ex parte for a temporary restraining order and an order to show cause why a preliminary injunction should not issue. The district court denied the motion. Plaintiffs then filed a motion for preliminary injunction. The district court denied the motion, and Plaintiffs timely appealed.

DISCUSSION

I. Eleventh Amendment Immunity

The district court determined that the Attorney General is not entitled to Eleventh Amendment immunity and did not address the State of California's or the Governor's immunity claims. We must resolve an Eleventh Amendment immunity claim before reaching the merits. Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir.2012). We review a denial of immunity de novo. Id.

"States are protected by the Eleventh Amendment from suits brought by citizens in federal court." Douglas v. Cal. Dep't of Youth Auth., 271 F.3d 812, 817, amended by, 271 F.3d 910 (9th Cir.2001). Plaintiffs are plainly barred by the Eleventh Amendment from suing the State of California in federal court.

An exception under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), however, allows citizens to sue state officers in their official capacities "for prospective declaratory or injunctive relief ... for their alleged violations of federal law." Coal. to Defend Affirmative Action, 674 F.3d at 1134. The state official "`must have some connection with the enforcement of the act.'" Id. (quoting Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441). That connection "must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Id. (quoting L.A. Cnty. Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)).

Here, Governor Brown is entitled to Eleventh Amendment immunity because his only connection to § 25982 is his general duty to enforce California law. See, e.g., Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 846-47, opinion amended on denial of reh'g, 812 F.3d 416 (9th Cir. 2002).

We may affirm the district court's determination that the Attorney General is not entitled to Eleventh Amendment immunity on any sufficient ground. See Papa v. United States, 281 F.3d 1004, 1009 (9th Cir.2002). Section 25983 expressly authorizes enforcement of the statute by district attorneys and city attorneys. Cal. Health & Safety Code § 25983(c) (stating that "[a] person or entity that violates this chapter [Force-Fed Birds] may be prosecuted by the district attorney of the county in which the violation occurred, or by the city attorney of the city in which the violation occurred").

Pursuant to Article V, § 13 of the California Constitution, the Attorney General not only has "direct supervision over every district attorney," but also has the duty "to prosecute any violations of law... [and] shall have all the powers of a district attorney," whenever she believes that the law is not being adequately enforced. Cal. Const. art. V, § 13. The combination of § 25983, which gives district attorneys the authority to prosecute violations of § 25982, and the Attorney General's duty to prosecute as a district [944] attorney establishes sufficient enforcement power for Ex Parte Young. See Coal. to Defend Affirmative Action, 674 F.3d at 1132-35 (affirming the denial of Eleventh Amendment to the President of the University of California because he was "duty-bound" to enforce the challenged statute, which precluded "using race as a criterion in admission decisions"); Nat'l Audubon Soc'y, Inc., 307 F.3d at 842, 847 (affirming the denial of Eleventh Amendment immunity to state official with "direct authority over and principal responsibility for enforcing Proposition 4," a law "to protect wildlife and domestic pets").

The Attorney General's argument that she is entitled to Eleventh Amendment immunity because she has not shown she intends to enforce § 25982 is foreclosed by our decision in National Audubon Society, Inc. v. Davis., 307 F.3d at 846. There, we held that a plaintiff need not show that a "present threat of enforcement" exists before invoking the Ex Parte Young exception. Id. Instead, a state official who contends that he or she will not enforce the law may challenge plaintiff's Article III standing based on "an unripe controversy." Id. at 847. The State makes no such challenge.

We affirm the district court's denial of Eleventh Amendment immunity to the Attorney General. We dismiss the State of California and Governor Brown from this lawsuit because they are immune from suit.

II. Denial of Plaintiffs' Preliminary Injunction

A. Standard of Review & Legal Standards

A plaintiff seeking a preliminary injunction must establish that: (1) he is "likely to succeed on the merits"; (2) he is "likely to suffer irreparable harm in the absence of preliminary relief"; (3) "the balance of equities tips in his favor"; and (4) "an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Under our "sliding scale" approach to evaluating the first and third Winter elements, a preliminary injunction may be granted when there are "serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff," so long as "the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir.2011) (internal quotation marks and citations omitted).

"We review a district court's grant or denial of a preliminary injunction for abuse of discretion and the underlying legal principles de novo." DISH Network Corp. v. F.C.C., 653 F.3d 771, 776 (9th Cir.2011). We may reverse the district court "only where [the district court] relied on an erroneous legal premise or abused its discretion." Id. Further, when we agree with the district court that a plaintiff has failed to show the likelihood of success on the merits, we "need not consider the remaining three [Winter elements]." Id. at 776-77.

B. The Scope of § 25982

We begin our analysis by addressing the parties' dispute over the scope of § 25982. Plaintiffs contend that the district court correctly concluded that § 25982 prohibits the sale of all products from force-fed birds including duck breasts and down jackets. The State argues that § 25982 covers only products that are the result of force feeding a bird to enlarge its liver beyond normal size, i.e., products made from an enlarged duck liver. We agree with the State's interpretation.

[945] The scope of a statute "is a question of law," which we review de novo. In re Lieberman, 245 F.3d 1090, 1091 (9th Cir.2001). In interpreting a state statute, we apply the state's rules of statutory construction. Id. at 1092. Under California law, a court must "look[] first to the language of the statute and give[] effect to its plain meaning." Id. "If the intent of the legislature is not clear from the language of the statute, legislative history may be considered." Id.

Section 25982 states, "[a] product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size." Cal. Health & Safety Code § 25982 (emphasis added). "The phrase `as a result of' in its plain and ordinary sense means `caused by' and requires a showing of a causal connection ...," Kwikset Corp. v. Super. Ct., 51 Cal.4th 310, 326, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) (quoting Hall v. Time Inc., 158 Cal. App.4th 847, 855, 70 Cal.Rptr.3d 466 (2008)); Troyk v. Farmers Grp., Inc., 171 Cal.App.4th 1305, 1349, 90 Cal.Rptr.3d 589 (2009) (interpreting phrase "as a result of" in statute "according to its common usage," which means "an element of causation"). The plain meaning of § 25982 is that it applies only to a product that is produced by force feeding a bird to enlarge its liver.

Although we need not consider the legislative history, it supports our interpretation. The accompanying Bill Analysis for Senate Bill 1520 which proposed the legislation Force Fed Birds, notes that the purpose of "th[e] bill is intended to prohibit the force feeding of ducks and geese ..., Force feeding is the common method used to produce foie gras ..., The Author states that no other livestock product is produced via force feeding ...," Sen. Comm. on Bus. & Professions (Cal.2004), Analysis of S.B. 1520 as introduced Apr. 26, 2004, at 4 (emphasis added); Sen. Rules Comm. (Cal.2004), Analysis of S.B. 1520 as amended May 6, 2004, at 5 (same).^[3] Further, foie gras is the only product produced via force feeding mentioned in the Bill Analyses. Specifically, the Bill Analyses discuss the background of foie gras; countries that have banned force feeding to produce foie gras; grocers who have refused to purchase foie gras; whether there are alternative methods of producing foie gras; and support for, and against, the foie gras industry.^[4]

We conclude that § 25982 is limited to products that are produced by force feeding a bird for the purpose of enlarging the bird's liver beyond normal size; it therefore does not prohibit the sale of duck breasts, down jackets, or other non-liver products from force-fed birds.^[5] In the district court, Plaintiffs' evidence showed that foie gras was the only product was [946] produced by force feeding.^[6] Thus, the only product covered by § 25982 at issue in this appeal is foie gras.

C. Plaintiffs' Due Process Clause Challenge

Plaintiffs contend that they raised a serious question that the statute violates their due process rights because: (1) the statute's definition of force feeding is vague; and (2) the statute fails to give persons fair notice of what conduct is prohibited. We disagree on both points.

"Whether a statute or regulation is unconstitutionally vague is a question of law reviewed de novo." United States v. Ninety-Five Firearms, 28 F.3d 940, 941 (9th Cir.1994). "It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). "To be struck down for vagueness, a statute or regulation must fail `to give a person of ordinary intelligence fair notice that his contemplated conduct' is forbidden." Donovan v. Royal Logging Co., 645 F.2d 822, 831 (9th Cir.1981) (quoting United States v. Dacus, 634 F.2d 441, 444 (9th Cir.1980)). "Economic regulation is subject to `a less strict vagueness test' than criminal laws ...," Great Am. Houseboat Co. v. United States, 780 F.2d 741, 746 (9th Cir.1986) (quoting Vill. of Hoffman Estates v. Flip-Side Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)).

1. The statute's definition for force feeding is not vague.

Section 25980 states, "[f]orce feeding a bird means a process that causes the bird to consume more food than a typical bird of the same species would consume voluntarily. Force feeding methods include, but are not limited to, delivering feed through a tube or other device inserted into the bird's esophagus." Cal. Health & Safety Code § 25980(b). Plaintiffs incorrectly contend that the statute's definition of force feeding is unconstitutionally vague because it lacks an identifiable measurement of exactly how much food a bird can be fed. Plaintiffs' argument ignores key terms that define the process of force feeding. These terms demonstrate that the statute covers Plaintiffs' conduct in this case.

As Plaintiffs' evidence demonstrates, there are four feeding stages of Moulard ducks. In the first three stages, ducks feed themselves from feeding pans that are available either twenty-four hours a day or certain times during the day. But in the "final stage, known as gavage," each duck is "hand-fed [by a feeder] using a tube to deliver the feed to the crop sac at the base of the duck's esophagus." In fact, Merriam Webster defines "gavage" as the "introduction of material into the stomach by a tube." During the gavage stage, the feeders dictate how much food the ducks are fed.

The specific example of force feeding under the statute — feeding a bird using a tube so that the bird will consume more food than it would consume voluntarily — is how Plaintiffs feed their ducks during the gavage stage. Thus, the district court did not abuse its discretion when it held that Plaintiffs failed to raise serious questions that, as applied to Plaintiffs, the definition of force feeding is not vague.

[947] 2. The statute gives fair notice of prohibited conduct.

Section 25982 states that "[a] product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size." Cal. Healthy & Safety Code § 25982. According to Plaintiffs, the term "purpose" refers to a farmer's subjective intent in feeding his birds, and they are left to guess whether a farmer's state of mind violated the statute. We disagree with Plaintiffs' reading of the statute.

The term "for the purpose of" in the statute modifies the phrase "force feeding a bird." See Am. Small Bus. League v. U.S. Small Bus. Admin., 623 F.3d 1052, 1054 (9th Cir.2010) ("As a matter of syntax, the latter phrase most naturally modifies only the former phrase."). The natural reading of "force feeding a bird for the purpose of enlarging the bird's liver beyond normal size" is a description of the objective nature of the force feeding, rather than the subjective motive of the farmer. See W. Watersheds Project v. Interior Bd. of Land Appeals, 624 F.3d 983, 987 (9th Cir.2010) (holding that a statute's phrase "for the purpose of" did not refer to "subjective motives," but rather was an objective description of the conduct covered by the statute). Here, Plaintiffs do not contest that force feeding a bird through a tube inserted into the bird's esophagus is for the purpose of enlarging the duck's liver.

Finally, Plaintiffs' description of § 25982 as invidious because it imposes strict liability is without merit. "[C]ivil penalties may be imposed without mens rea requirements because they are indeed civil ...," Humanitarian Law Project v. U.S. Treasury Dep't, 578 F.3d 1133, 1152 (9th Cir.2009). We therefore conclude that the district court did not abuse its discretion when it concluded that Plaintiffs failed to raise serious questions concerning their Due Process Clause challenge.^[7]

D. Plaintiffs' Commerce Clause Challenge

Plaintiffs argue that we should find that § 25982 violates the Commerce Clause because the statute: (1) discriminates against interstate commerce; and (2) directly regulates interstate commerce. The district court held that Plaintiffs failed to raise a serious question on the merits of their claim, and we agree.

"Although the Commerce Clause is by its text an affirmative grant of power to Congress to regulate interstate and foreign commerce, the Clause has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce." Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir.2012) (quoting South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87, 104 S.Ct 2237, 81 L.Ed.2d 71 (1984)). This limitation on the states to regulate commerce is "known as the dormant Commerce Clause." Id. The primary purpose of the dormant Commerce Clause is to prohibit "statutes that discriminate against interstate commerce" by providing benefits to "in-state economic interests" while "burdening out-of-state competitors." Id. at 1148 (quoting CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 87, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987), and Dep't of Revenue v. Davis, 553 U.S. 328, 337, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008)).

[948] The Supreme Court has adopted a "two-tiered approach to analyzing state economic regulation under the Commerce Clause." Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 578-79, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986).

[1] When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, [the Court has] generally struck down the statute without further inquiry. [2] When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, [the Court has] examined whether the State's interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.

Id. at 579, 106 S.Ct. 2080 (citations omitted).^[8] The district court did not abuse its discretion when it concluded that § 25982 falls into the second tier because the statute does not discriminate against interstate commerce or directly regulate interstate commerce.

1. Section 25982 is not discriminatory.

The Supreme Court has "interpreted the Commerce Clause to invalidate local laws that impose commercial barriers or discriminate against an article of commerce by reason of its origin or destination out of State." C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 390, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994); Nat'l Ass'n of Optometrists, 682 F.3d at 1148 (explaining that discriminatory statutes seek economic protectionism and are "`designed to benefit in-state economic interests by burdening out-of-state competitors'" (quoting Dep't of Revenue, 553 U.S. at 337, 128 S.Ct. 1801)). Conversely, a statute that "treat[s] all private companies exactly the same" does not discriminate against interstate commerce. United Haulers Ass'n, Inc., 550 U.S. at 342, 127 S.Ct. 1786. This is so even when only out-of-state businesses are burdened because there are no comparable in-state businesses. Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 119-20, 125, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978).

Under § 25982, no entity can sell a product that "is the result of force feeding a bird" regardless of the product's source or origin. Cal. Health & Safety Code § 25982. As the district court correctly found, "[s]ection 25982's economic impact does not depend on where the items were produced, but rather how they were produced." Because § 25982 bans the sale of both intrastate and interstate products that are the result of force feeding a bird, it is not discriminatory. See Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1012 (9th Cir.1994) (holding that "[a]n import ban that simply effectuates a complete ban on commerce in certain items is not discriminatory, as long as the ban on commerce does not make distinctions based on the origin of the items"); Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326, 335 (5th Cir.2007) (holding that a statute that "treats both intrastate and interstate trade of horsemeat equally by way of a blanket prohibition" cannot be "considered economic protectionism").

2. Section 25982 does not directly regulate interstate commerce.

A statute is not "`invalid merely because it affects in some way the flow of [949] commerce between the States.'" Nat'l Ass'n of Optometrists, 682 F.3d at 1148 (quoting Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 371, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976)). Instead, a statute violates the dormant Commerce Clause per se when it "directly regulates interstate commerce." NCAA v. Miller, 10 F.3d 633, 638 (9th Cir.1993) (emphasis added).

Plaintiffs argue that the district court should have found that § 25982 directly regulates extra-territorial conduct because the statute: (a) targets out-of-state entities; (b) bans foie gras unless all farmers comply with California's standards; (c) controls commerce outside of California; and (d) will result in conflicting legislation. We disagree.

a. Section 25982 is not aimed at out-of-state producers.

Plaintiffs contend that § 25982 targets wholly extraterritorial activity because it is "aimed in only one direction: at out-of-state producers." Plaintiffs reason that § 25982 is "apparently directed at farmers who feed their ducks and geese outside [California]," because § 25981 already prohibits businesses in California from force feeding birds.

Plaintiffs misinterpret the interplay between the statutory provisions. Plaintiffs assume that § 25981 and § 25982 are functionally equivalent, with § 25981 targeting California entities and § 25982 targeting out-of-state entities. In truth, § 25981 serves an entirely different purpose than § 25982. Section 25981 prohibits entities from force feeding birds in California. But for § 25981, a California producer could force feed ducks in California, and then sell foie gras outside of California. Section 25981, however, does not prohibit the sale of products produced by force feeding birds. That is where § 25982 comes in. Section 25982 applies to both California entities and out-of-state entities and precludes sales within California of products produced by force feeding birds regardless of where the force feeding occurred. Otherwise, California entities could obtain foie gras produced out-ofstate and sell it in California. Thus, Plaintiffs' assertion that § 25982 is directed solely at out-of-state producers is incorrect.

b. Plaintiffs have not shown that § 25982 constitutes a total ban on foie gras or that a nationally uniform production method is required for foie gras.

Plaintiffs rely on Schollenberger v. Pennsylvania, 171 U.S. 1, 18 S.Ct. 757, 43 L.Ed. 49 (1898), to argue that § 25982 has directly regulated interstate commerce because it has stopped the free flow of foie gras between states. In Schollenberger, the Supreme Court invalided an import and sale ban on oleomargarine (margarine) that carried criminal penalties. Id. at 8, 18 S.Ct. 757. It held that the "absolute prohibition of an unadulterated, healthy, and pure article" violated the Commerce Clause. Id. at 13, 18 S.Ct. 757.

Plaintiffs would have us assume, without evidentiary support, that § 25982 amounts to a flat ban on foie gras. Plaintiffs' declarations do not demonstrate that foie gras may be produced only by force feeding. The district court found that "the evidence may [ultimately] show that Section 25982 only precludes a more profitable method of operation — force feeding birds for the purpose of enlarging its liver — rather than affecting the interstate flow of goods." It may be that Plaintiffs are precluded from using force feeding to produce foie gras, but "the dormant Commerce Clause does not ... guarantee Plaintiffs their preferred method of operation." Nat'l Ass'n of Optometrists, 682 F.3d at 1151. At this stage in the proceedings. Plaintiffs have [950] not shown that the effect of § 25982 is a complete import and sales ban on foie gras.

Moreover, in Schollenberger the Supreme Court emphasized that Congress actively regulated the industry of oleomargine. 171 U.S. at 8, 18 S.Ct. 757. Congress had "given a definition of the meaning of oleomargarine, and ha[d] imposed a special tax on the manufacturers of the article, on wholesale dealers and upon retail dealers." Id. at 8, 18 S.Ct. 757. See also Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 502, 86 L.Ed. 754 (1942) (stating that "[t]he manufacture and distribution... of process and renovated butter is a substantial industry which, because of its multi-state activity, cannot be effectively regulated by isolated competing states").

In a different context, we have recognized that a state's regulation of a nationally uniform business can have extraterritorial effects. In NCAA v. Miller, we considered the constitutionality of a Nevada statute that imposed standards for how the NCAA, an interstate organization, could run its enforcement proceedings. 10 F.3d at 638-39. "[F]or the NCAA to accomplish its goals, [its] enforcement procedures must be applied even-handedly and uniformly on a national basis." Id. at 638 (internal quotation marks and citation omitted). The national uniformity required by the NCAA meant that the NCAA could not adopt Nevada's procedures for Nevada, and alternative procedures for its business in other states. Id. at 639. As a result, to avoid liability under Nevada's statute, the NCAA "would have to apply Nevada's procedures to enforcement proceedings throughout the country." Id. We concluded that Nevada's statute directly regulated interstate commerce. Id.

Plaintiffs argue that the need for national uniformity for the foie gras market is evidenced by the federal Poultry Products Inspection Act's ("PPIA") requirement that ducks undergo several stages of federal inspection.^[9] The PPIA ensures that "poultry products distributed to [the public] are wholesome, not adulterated, and properly marked, labeled, and packaged." 21 U.S.C. § 451. Plaintiffs contend that the PPIA provides a comprehensive set of detailed regulations that includes standards indicating that "ducks will be handfed to create foie gras." The standards to which Plaintiffs refer, however, merely state that "Goose liver and duck liver foie gras (fat liver) are obtained exclusively from specially fed and fattened geese and ducks." It says nothing about the force feeding of geese and ducks.

At this stage in the proceedings, Plaintiffs have not demonstrated that a nationally uniform foie gras production method is required to produce foie gras. If no uniform production method is required, Plaintiffs may force feed birds to produce foie gras for non-California markets. California's standards are therefore not imposed as the sole production method Plaintiffs must follow. We therefore hold that the district court correctly concluded that Plaintiffs have not raised serious questions that § 25982 "require[s] an individual or business to choose between force feeding a bird in another state and complying with California law."

c. Section 25982 is not a price fixing statute.

Plaintiffs rely heavily on Healy v. Beer Institute, Inc., 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989), and Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 [951] S.Ct. 497, 79 L.Ed. 1032 (1935), to assert that § 25982's practical effect is to control conduct outside the boundaries of California. In Healy, the Supreme Court struck down Connecticut's statute that "require[d] out-of-state shippers of beer to affirm that their posted prices for products sold to Connecticut wholesalers are, as of the moment of posting, no higher than the prices at which those products are sold in... bordering States." 491 U.S. at 326, 109 S.Ct. 2491. The Supreme Court concluded that the statute "controll[ed] commercial activity occurring wholly outside the boundary of the State" because it "preclude[d] the alteration of out-of-state prices after the moment of affirmation." Id. at 337-38, 109 S.Ct. 2491. Similarly, in Baldwin, the Supreme Court struck down a New York statute that prohibited the sale of milk within New York if the milk was acquired from Vermont farmers at a lower price than New York farmers would have been paid for the milk. Baldwin, 294 U.S. at 521, 55 S.Ct. 497.

The Supreme Court has explained that Healy and Baldwin involved "price control or price affirmation statutes." Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 669, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003). Accordingly, the Court has held that Healy and Baldwin are not applicable to a statute that does not dictate the price of a product and does not "t[ie] the price of its in-state products to out-of-state prices." Id. Here, § 25982 does not impose any prices for duck liver products and does not tie prices for California liver products to out-of-state prices. Healy and Baldwin are thus inapplicable in this case.

d. Plaintiffs have not shown that § 25982 will have the practical effect of conflicting legislation.

Plaintiffs warn that if § 25982 is found to be constitutional it will result in "[b]alkanization in the market for duck products." Plaintiffs, however, cite to proposed legislation, not enacted legislation. The only other domestic statute on foie gras mentioned by the parties and amicus curiae is Chicago's former ordinance prohibiting foie gras. Although the Chicago ordinance was upheld by an Illinois district court, when the appeal was pending in the Seventh Circuit, the city repealed the ordinance and the decision was vacated. See Ill. Rest. Ass'n v. City of Chicago, 492 F.Supp.2d 891 (N.D.Ill.2007), vacated as moot, 06 C 7014, 2008 WL 8915042 (N.D.Ill. Aug. 7, 2008). On this record, Plaintiffs' fear of balkanization is based on speculation. "[T]he [Supreme] Court has never invalidated a state or local law under the dormant Commerce Clause based upon mere speculation about the possibility of conflicting legislation." S.D. Myers, Inc. v. City & Cnty. of San Francisco, 253 F.3d 461, 470 (9th Cir.2001).

For these reasons we conclude that the district court did not abuse its discretion when it concluded that Plaintiffs failed to raise serious questions concerning their Commerce Clause challenge.

3. Section 25982 does not substantially burden interstate commerce.

The district court correctly determined that Plaintiffs failed to raise serious questions that § 25982 discriminates or directly regulates interstate commerce. Consequently, the district court properly analyzed, under Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), whether "the burden [the statute] imposes on interstate commerce is `clearly excessive in relation to the putative local benefits.'" S.D. Myers, Inc., 253 F.3d at 471 (quoting Pike, 397 U.S. at 142, 90 S.Ct. 844).

We have explained that under Pike, a plaintiff must first show that the [952] statute imposes a substantial burden before the court will "determine whether the benefits of the challenged laws are illusory." Nat'l Ass'n of Optometrists, 682 F.3d at 1155. We conclude that the district court correctly held that Plaintiffs did not raise a serious question that § 25982 will substantially burden interstate commerce.

First, as the district court recognized, most statutes that impose a substantial burden on interstate commerce do so because they are discriminatory. See id. at 1148 (noting that "[m]ost regulations that run afoul of the dormant Commerce Clause do so because of discrimination"). As discussed above, § 25982 is not discriminatory.

Second, less typically, statutes impose significant burdens on interstate commerce as a consequence of "inconsistent regulation of activities that are inherently national or require a uniform system of regulation." Id. But here, Plaintiffs have failed to show that the foie gras market is inherently national or that it requires a uniform system of regulation. See Valley Bank of Nev. v. Plus Sys., Inc., 914 F.2d 1186, 1192 (9th Cir.1990) (noting that examples of "courts finding uniformity necessary" fall into the categories of "transportation" or "professional sports league[s]").

Third, the district court found that although Plaintiffs alleged that § 25982 would "result in the loss of over $5 million in interstate and foreign sales of wholesale foie gras and moulard duck products, this figure overestimates Section 25982's impact."^[10] Plaintiffs' alleged loss includes duck products, such as duck breasts, that are not produced by force feeding birds and are not covered by § 25982. Additionally, as the district court emphasized, § 25982 may only preclude Plaintiffs' "more profitable" method of producing foie gras, rather than Plaintiffs' foie gras production. Thus, Plaintiffs failed to raise serious questions that § 25982 imposes a substantial burden on interstate activity.

We likewise affirm the district court's holding that Plaintiffs failed to raise a serious question that § 25982's burden clearly exceeds its local benefits. The parties agree that the State has an interest in preventing animal cruelty in California. See United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1585, 176 L.Ed.2d 435 (2010) ("[T]he prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies."). The district court found that the State has pursued its interest in preventing animal cruelty "both by outlawing the actual practice of force-feeding birds for the purpose of enlarging their livers (Section 25981) and the sale of such products (Section 25982)."

Plaintiffs argue on appeal that precluding sales of products produced by force feeding birds "does nothing" to prevent animal cruelty in California. But in the district court, "Plaintiffs ... presented no evidence that Section 25982 is an ineffective means of advancing that goal." Plaintiffs give us no reason to doubt that the State believed that the sales ban in California may discourage the consumption of products produced by force feeding birds and prevent complicity in a practice that it deemed cruel to animals. Cf. Empacadora de Carnes de Fresnillo, S.A. de C.V., 476 F.3d at 336 (concluding that a state ban on slaughtering and selling horsemeat for human consumption may preserve horses and prevent human consumption of horsemeat because it "remov[es] the significant monetary incentives" in the [953] horsemeat market). "[T]he Supreme Court has frequently admonished that courts should not `second-guess the empirical judgments of lawmakers concerning the utility of legislation.'" Pac. Nw. Venison Producers, 20 F.3d at 1017 (quoting CTS Corp., 481 U.S. at 92, 107 S.Ct. 1637).

Plaintiffs argue that less burdensome alternatives to § 25982 exist. Plaintiffs urge us to rewrite § 25982 by restricting the statute to "sales of products from ducks that have been force fed in California." We will not do so. "[F]or us to invalidate a statute based on the availability of less burdensome alternatives, the statute would have to impose a significant burden on interstate commerce," which is not the case here. Nat'l Ass'n of Optometrists, 682 F.3d at 1157.

Because we affirm the district court's holding that Plaintiffs failed to raise a serious question that they are likely to succeed on the merits, we need not consider the remaining Winter elements of whether Plaintiffs will suffer irreparable harm; whether the balance of equities tip in Plaintiffs' favor; or whether an injunction is in the public interest. Winter, 555 U.S. at 20, 129 S.Ct. 365; DISH Network Corp., 653 F.3d at 776-77.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court's denial of Plaintiffs' motion for a preliminary injunction. We REMAND for further proceedings consistent with this opinion.

[1] The Honorable Wiley Y. Daniel, Senior District Judge for the U.S. District Court for Colorado, sitting by designation.

[2] Plaintiffs do not seek to enjoin § 25981. Section 25981 prohibits force feeding birds in California. Because Plaintiffs do not raise their ducks in California, § 25981 does not preclude them from force feeding their ducks.

[3] We may take judicial notice of § 25982's legislative history. Chaker v. Crogan, 428 F.3d 1215, 1223 n. 8 (9th Cir.2005).

[4] See Sen. Comm. on Bus. & Professions (Cal. 2004), Analysis of S.B. 1520 as introduced Apr. 26, 2004, at 5-11; Sen. Rules Comm. (Cal.2004), Analysis of S.B. 1520 as amended May 6, 2004, at 5-12; Assem. Comm. on Bus. and Professions (Cal.2004), Analysis of S.B. 1520 as amended May 6, 2004, at 4-11; Sen. Third Reading (Cal.2004), Analysis of S.B. 1520 as amended June 21, 2004, at 2-5; Sen. Third Reading (Cal.2004), Analysis of S.B. 1520 as amended Aug. 17, 2004, at 2-5; Sen. Rules Comm. (Cal.2004), Analysis of S.B. 1520 as amended Aug. 17, 2004, at 3-4, 6-7.

[5] Plaintiffs argue that § 25982 was intended to ban every duck product, not just foie gras, because the statute does not use the term "foie gras." Section 25982, however, does not prohibit foie gras. It bans the sale of foie gras produced through force feeding, but would not ban foie gras produced through alternative methods.

[6] During oral argument, Plaintiffs' counsel argued that the industry of down feathers relies on force feeding ducks, but Plaintiffs' declarations contain no evidence to support that argument.

[7] Plaintiffs also argue that § 25982 will be arbitrarily enforced to preclude only the sale of liver products, but those are the only products covered by the statute.

[8] With respect to the first tier of the inquiry, more recent cases have applied strict scrutiny to discriminatory laws. See, e.g., United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 343, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007): Conservation Force, Inc. v. Manning, 301 F.3d 985, 995 (9th Cir.2002).

[9] Plaintiffs did not raise preemption as a basis for the preliminary injunction in the district court. Thus, the issue of preemption is not before us.

[10] As they did in the district court, Plaintiffs make no more than a passing reference to § 25982's alleged burden on foreign commerce.

110 A.D.3d 1 (2013)
970 N.Y.S.2d 200
2013 NY Slip Op 5505

[2] Michael A. Cardozo, Corporation Counsel, New York City (Fay Ng, Leonard J. Koerner, Pamela Seider Dolgow, Mark Muschenheim and Jasmine M. Georges of counsel), for appellants.

Latham & Watkins, LLP, Washington, D.C. (Richard P. Bress of the bar of the District of Columbia, admitted pro hac vice, of counsel), for respondents, and James E. Brandt, New York City, for The American Beverage Association, respondent.

[3] Weil, Gotshal & Manges LLP, New York City (James W. Quinn, Salvatore A. Romanello and Gregory Silbert of counsel), for The National Restaurant Association, respondent.

Mololamken LLP, New York City (Steven F. Molo and Ben Quarmby of counsel), for The New York Statewide Coalition of Hispanic Chambers of Commerce and another, respondents.

Rivkin Radler, LLP, Uniondale (Evan H. Krinick, Barry I. Levy and Brian L. Bank of counsel), for Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of Teamsters, respondent.

Reese Richman LLP, New York City (Kim E. Richman of counsel), for The National Alliance for Hispanic Health and others, amici curiae.

Bromberg Law Office, P.C., New York City (Brian L. Bromberg of counsel), for The National Association of Local Boards of Health and others, amici curiae.

King & Spalding LLP, New York City (Ann M. Cook of counsel), for The New York State Conference of the National Association for the Advancement of Colored People and others, amici curiae.

Watkins, Bradley & Chen LLP, New York City (Clifford Y. Chen, Stephanie F. Bradley and Adam F. Watkins of counsel), for New York City Council Members Maria Del Carmen Arroyo and others, amici curiae.

Featherstonhaugh, Wiley & Clyne, LLP, Albany (James D. Featherstonhaugh of counsel), for The Business Council of New York State, Inc. and others, amici curiae.

Shapiro, Arato & Isserles LLP, New York City (Alexandra A.E. Shapiro, Marc E. Isserles and Chetan A. Patil of counsel), for The Chamber of Commerce of the United States of America and others, amici curiae.

Friedman Kaplan Seiler & Adelman LLP, New York City (Bruce S. Kaplan and Yitzchak E. Soloveichik of counsel), for The Street Vendor Project, amicus curiae.

FRIEDMAN, J.P., RICHTER and FEINMAN, JJ., concur.

Order, Supreme Court, New York County, entered March 11, 2013, affirmed, without costs.

[17] OPINION OF THE COURT

RENWICK, J.

In this hybrid CPLR article 78/declaratory judgment proceeding, we are called upon to decide the constitutionality of the New York City Board of Health's Sugary Drinks Portion Cap Rule. The Sugary Drinks Portion Cap Rule, dubbed the "Soda Ban," prohibits New York City restaurants, movie theaters and [4] other food service establishments from serving sugary drinks in sizes larger than 16 ounces. Like Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority. Accordingly, we declare the regulation to be invalid, as violative of the principle of separation of powers.

Factual and Procedural Background

We begin with a background of the regulatory agency and the challenged regulation. Pursuant to New York City Charter § 556, respondent New York City Department of Health and Mental Hygiene (DOHMH), an administrative agency in the executive branch of the City government, is charged with regulating and supervising all matters affecting health in the City, including conditions hazardous to life and health, by, among other things, regulating the food and drug supply of the City, and enforcing provisions of the New York City Health Code.

Respondent New York City Board of Health (Board of Health), established by New York City Charter § 553, is comprised of 11 individuals with relevant experience who were appointed by the Mayor. Pursuant to New York City Charter § 558, the Board of Health is empowered to amend the Health Code with respect to all matters to which the power and authority of DOHMH extend. This includes article 81 of the Health Code (24 RCNY), which sets forth rules regulating City "food service establishments" (FSEs). The Health Code defines an FSE as "a place where food is provided for individual portion service directly to the consumer whether such food is provided free of charge or sold, whether consumption occurs on or off the premises or is provided from a pushcart, stand or vehicle." (NY City Health Code [24 RCNY] § 81.03 [s]). Pursuant to a 2010 Memorandum of Understanding (MOU) between the City's DOHMH and the State's Department of Agriculture and Markets, an FSE is subject to inspection by a local health department only if it generates 50% or more of its total annual dollar receipts from the sale of food for consumption on the premises or ready-to-eat for off-premises consumption.

On May 30, 2012, Mayor Michael Bloomberg announced the Portion Cap Rule, a proposed amendment to article 81, that would require FSEs to cap at 16 ounces the size of cups and containers used to offer, provide and sell sugary beverages. The Mayor's stated purpose of the rule was to address rising obesity rates in the City. On June 1, 2012, 14 members of the New York [5] City Council wrote to the Mayor opposing the proposal and insisting that, at the very least, it should be put before the Council for a vote. This did not occur.

Instead, on June 12, 2012, DOHMH presented to the Board of Health the proposed amendment to article 81. The Board voted to allow DOHMH to publish the proposal in the City Record, and thereby provide the public with an opportunity to comment on the proposal in advance of a public hearing. On July 24, 2012, a public hearing was held on the Portion Cap Rule. Of the more than 38,000 written comments received prior to the scheduled hearing, approximately 32,000 (84%) supported the proposal and approximately 6,000 (16%) opposed it. In addition, a petition opposing the proposal, signed by more than 90,000 people, was submitted by New Yorkers for Beverage Choice, a coalition of individuals, businesses, and community organizations.

DOHMH proposed no changes to the initial proposal that was made public in May. Instead, DOHMH provided the Board with a memorandum, dated September 6, 2012, summarizing and responding to the testimony and written comments (DOHMH, Bureau of Chronic Disease Prevention & Tobacco Control, Summary and Response to Public Hearing and Comments Received Regarding Amendment of Article 81 of the New York City Health Code to Establish Maximum Sizes for Beverages Offered and Sold in Food Service Establishments, Sept. 6, 2012, available at http://www.nyc.gov/html/doh/downloads/pdf/boh/article81-response-to-comments.pdf). In the memorandum, which supported the promulgation of the Portion Cap Rule, DOHMH pointed out, among other things, that "[t]he scientific evidence supporting associations between sugary drinks, obesity, and other negative health consequences is compelling." (id. at 3). In addition, DOHMH pointed out that the proposed rule would have a "material impact" on consumption of sugary drinks because "[p]atterns of human behavior indicate that consumers gravitate towards the default option." (id. at 6). Thus, DOHMH concluded "If the proposal is adopted, customers intent upon consuming more than 16 ounces would have to make conscious decisions to do so." (id.). With regard to the critics' assertion that the rule would result in economic hardship for certain businesses, the agency responded that the freedom to sell large sugary drinks "means little compared to the necessity to protect New Yorkers from the obesity epidemic." (id. at 8 [emphasis omitted]).

[6] On September 13, 2012, the Board of Health met for the board members to cast their votes on the Portion Cap Rule. Before the vote, both the Commissioner of Health and several board members echoed DOHMH's comments about the Portion Cap Rule, as expressed in the aforementioned memorandum. In the end, the Board voted to adopt the Portion Cap Rule, and a "Notice of Adoption of an Amendment (§ 81.53) to Article 81 of the... Health Code" was published in the City Record on September 21, 2012, to go into effect on March 12, 2013 (City Rec, Sept. 21, 2012 at 2602).

As adopted, the Portion Cap Rule limited the maximum self-service cup or container size for sugary drinks to 16 fluid ounces for all FSEs within New York City, and defined "sugary drink" as a nonalcoholic carbonated or noncarbonated beverage that is sweetened by the manufacturer or establishment with sugar or another caloric sweetener, has greater than 25 calories per 8 fluid ounces of beverage, and does not contain more than 50% of milk or milk substitute by volume as an ingredient. (NY City Health Code [24 RCNY] § 81.53).^[1] The rule thus targeted non-diet soft drinks, sweetened teas, sweetened black coffee, hot chocolate, energy drinks, sports drinks, and sweetened juices, but contained carve-outs for alcoholic beverages, milkshakes, fruit smoothies and mixed coffee drinks, mochas, lattes, and 100% fruit juices. In addition, DOHMH announced that the Portion Cap Rule would apply only to those FSEs subject to the agency's inspections under the MOU. As a result, the ban applies to restaurants, delis, fast-food franchises, movie theaters, stadiums and street carts, but not to grocery stores, convenience stores, corner markets, gas stations and other similar businesses.

On October 12, 2012, before the rule went into effect, petitioners commenced this action seeking to invalidate the Portion Cap Rule.^[2] Petitioners alleged that the Board's adoption of the Portion Cap Rule was ultra vires in that it usurped the role of the City Council and imposed social policy by executive fiat, contending that the Board "may not bypass the legislature, under the guise of public health, and make fundamental policy [7] choices and establish far-reaching new policy programs all by themselves, no matter how well-intentioned they may be."

Supreme Court declared the regulation invalid, primarily on the ground that by adopting the Portion Cap Rule, the Board of Health exceeded its authority and violated the separation of powers doctrine as delineated in Boreali v Axelrod (71 NY2d 1 [1987]) (2013 NY Slip Op 30609[U] [2013]). It also found that the rule itself was arbitrary and capricious. This appeal ensued.

Discussion

At the outset, we agree with Supreme Court that the starting point for the analysis of whether the subject regulation violates the separation of powers doctrine is the Court of Appeals' landmark decision in Boreali. Respondents, however, argue that Boreali does not apply to the present case because the Board of Health has been vested with the power to act on any health related manner. This argument rests on a fundamental misunderstanding of the power of administrative agencies vis-à-vis the legislature. The misunderstanding may be readily clarified.

Respondents correctly point out that local public bodies, such as the Board of Health, may be delegated a broad range of powers which are essentially legislative in nature (People v Blanchard, 288 NY 145 [1942]). The Board of Health, however, has no inherent legislative power. It derives its power to establish rules and regulations directly and solely from the legislature, in this case, the City Council (Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 356 [1985]; see also Subcontractors Trade Assn. v Koch, 62 NY2d 422 [1984]).^[3]

The separation of powers doctrine of the State Constitution establishes the boundaries between actions of the legislature and an administrative agency. Because the constitution vests legislative power in the legislature, administrative agencies may only effect policy mandated by statute and cannot exercise sweeping power to create whatever rule they deem necessary. In other words, "[a]s an arm of the executive branch of government, [8] an administrative agency may not, in the exercise of rule-making authority, engage in broad-based public policy determinations (Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 169 [1993], cert denied 512 US 1213 [1994], citing Boreali, 71 NY2d at 9).

Ultimately, the Board of Health has failed to distinguish its action from the action of the analogous administrative body in Boreali. As here, the state legislature in Boreali gave the Public Health Council (PHC) broad authority to promulgate regulations on matters concerning public health. Still, Boreali held, the scope of the PHC's authority under its enabling statute was deemed limited by its role as an administrative, rather than a legislative body (Boreali, 71 NY2d at 9).

We must then examine whether the Board of Health exceeded the bounds of its legislative authority as an administrative agency when it promulgated the Sugary Drinks Portion Cap Rule. Boreali illustrates when the "difficult-to-demarcate line" between administrative rulemaking and legislative policymaking has been transgressed. In Boreali, the PHC promulgated regulations prohibiting smoking in a wide variety of public facilities following several years of failed attempts by members of the state legislature to further restrict smoking through new legislation. Boreali found the regulations invalid because, although the PHC was authorized by the Public Health Law to regulate matters affecting the public health, "the agency stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be" (id. at 9).

Boreali relied on four factors in finding that the PHC's regulations were an invalid exercise of legislative power. First, Boreali found the PHC had engaged in the balancing of competing concerns of public health and economic costs, "acting solely on [its] own ideas of sound public policy" (id. at 12). Second, the PHC did not engage in the "interstitial" rulemaking typical of administrative agencies, but had instead written "on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance" (id. at 13). Third, the PHC's regulations concerned "an area in which the Legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions" (id.). Boreali found that the separation of powers principles mandate that elected legislators rather than [9] appointed administrators "resolve difficult social problems by making choices among competing ends" (id.). Fourth, Boreali found that the agency had overstepped its bounds because the development of the regulations did not require expertise in the field of health (id. at 14).

According to Boreali, these "coalescing circumstances," when viewed in combination, paint a portrait of an agency that has improperly assumed for itself "`[t]he open-ended discretion to choose ends,' which characterizes the elected Legislature's role" (id. at 11 [citation omitted]). Boreali went on to say that none of the four factors, standing alone, is sufficient for a finding that the administrative agency has violated the separation of powers (id.). This characterization indicates to us that, contrary to the Board of Health's suggestion, Boreali intended the four factors to be interpreted as indicators of the usurpation of the legislature, rather than a talismanic rule of four required elements that must all be present in every case.

Indeed, one year later, in Matter of Campagna v Shaffer (73 NY2d 237, 243 [1989]), the Court explained that "[a] key feature of [the Boreali] case ... was that the Legislature had never articulated a policy regarding ... public smoking." Subsequently, the courts have consistently held that so long as an action taken by an administrative agency is consistent with the policies contemplated by the legislature, the action taken will survive constitutional scrutiny under the doctrine of separation of powers (see e.g. Higgins, 83 NY2d 156; Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340 [1991]; Matter of Campagna, 73 NY2d 237).^[4]

In any event, we find that all four Boreali factors indicative of the usurpation of legitimate legislative functions are present in this case. Turning to the first Boreali factor — balancing competing concerns of public health and economic costs — the Court found that the PHC's promulgation of comprehensive regulations that banned smoking in some public places was not consistent with the authority provided by the legislature under the [10] Public Health Law to promulgate regulations on matters concerning public health (71 NY2d at 12-13). The Court pointed to the PHC's inclusion of exceptions and exemptions that reflected the agency's own balancing of economic and social implications of the regulations as clear evidence that the regulatory scheme was inconsistent with the agency's legislative authority (id.). Specifically, the PHC had exempted certain establishments, such as bars and certain restaurants, from the indoor smoking bans (id. at 12). This effort to "[s]trik[e] the proper balance among health concerns, costs and privacy interests ... is a uniquely legislative function" (id.). According to Boreali, the presence of exemptions is particularly telling because exemptions typically "run counter to such goals and, consequently, cannot be justified as simple implementations of legislative values" (id.). The exceptions did not, therefore, reflect the agency's charge to protect public health but instead reflected the agency's own policy decisions regarding balancing the relative importance of protecting public health with ensuring the economic viability of certain industries (id.).

Likewise, in this case, it cannot be said that the Board of Health acted solely with a view toward public health considerations when it adopted exemptions to the Portion Cap Rule. Indeed, during the public comment period and hearings both DOHMH and the board members themselves indicated that they weighed the potential benefits against economic factors. The Commissioner went as far as to indicate that in addition to promoting health, the ban would help ameliorate obesity-related health care expenditures in New York.

These comments alone do not convince us that the Board of Health considered non-health factors. Rather, we find particularly probative the regulation's exemptions, which evince a compromise of social and economic concerns, as well as private interests. As indicated, the regulatory scheme is not an all-encompassing regulation. It does not apply to all FSEs. Nor does it apply to all sugary beverages. The Board of Health's explanations for these exemptions do not convince us that the limitations are based solely on health-related concerns.

With regard to the exemption for sugary milk or juice drinks, the agency explained that it is based on the Board's conclusion that they, unlike the covered drinks, have some nutritional benefits. The agency, however, ignores the fact that the "soda ban" does more than just target a specific food category. It also ignores that the Board has never categorized soda and the other [11] targeted sugary drinks as inherently unhealthy. In essence, as DOHMH acknowledges, it prescribes a mechanism to discourage New Yorkers from consuming those targeted sugary drinks by dictating a maximum single portion size that can be made available in certain food service establishments. Such mechanism necessarily looks beyond health concerns, in that it manipulates choices to try to change consumer norms.

Indeed, since a basic premise of the ban is that New Yorkers consume excessive quantities of sugary drinks, the Board's decision to regulate only these drinks requires that any health concerns be weighed against consumer preferences for such drinks. Instead of offering information and letting the consumer decide, the Board's decision effectively relies upon the behavioral economics concept that consumers are pushed into better behavior when certain choices are made less convenient. For instance, the regulation makes the choice to drink soda more expensive, as it costs more to buy two 16-ounce drinks than to buy one 32-ounce drink. As a result, the Board necessarily concluded, as a threshold matter, that health concerns outweigh the cost of infringing on individual rights to purchase a product that the Board has never categorized as inherently dangerous. As the intense public debate on the ban bears out, this threshold decision to regulate a particular food is inherently a policy decision.^[5] Such decision necessarily reflects a balance between health concerns, an individual consumer's choice of diet, and business financial interests in providing the targeted sugary drinks. In this context, the "Soda Ban" is one especially suited for legislative determination as it involves "difficult social problems," which must be resolved by "making choices among competing ends" (Boreali, 71 NY2d at 13).

With regard to the exemption of certain FSEs (i.e., grocery markets, 7-11s, bodegas, etc.), 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 [12] Board's claim that the MOU tied its hands is belied by the fact that the agency has previously used its regulatory authority to promulgate city-wide health rules that regulate all FSEs (see e.g. NY City Health Code [24 RCNY] §§ 181.07 [city-wide regulation of common eating and drinking utensils]; 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 with the 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 York City 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.

The second Boreali factor is whether the Board of Health exceeded its authority by writing on "a clean slate" rather than using its regulatory power to fill in the details of a legislative scheme. It cannot be seriously disputed that administrative agencies like DOHMH play an important role in rulemaking, particularly in the context of broadly worded legislation that sets out general policy goals and program parameters. In this context, administrative agencies engage in what is known as interstitial rulemaking. Interstitial rulemaking is the process of filling in the details of a broad legislative mandate and making that legislation operational (Boreali, 71 NY2d at 13).

Conversely, when an agency's action goes beyond filling in the details of a broad legislative scheme, it exceeds the limits of its authority. This was the case in Boreali where there was no legislation authorizing the PHC to regulate smoking in public places. Consequently, the PHC was left to make policy choices that were appropriately for the legislature. The PHC "wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance" (id. at 13). Therefore, [13] Boreali held that the PHC's actions were "a far cry from the `interstitial' rule making" (id.).

Similarly, in the case at bar, contrary to the Board of Health's argument, in adopting the Sugary Drinks Portion Cap Rule, the Board did not fill a gap in an existing regulatory scheme but instead wrote on a clean slate. In fact, the Board of Health does not dispute that neither the state legislature nor the City Council has ever promulgated a statute defining a policy with respect to excessive soda consumption, the purported subject of the regulation. Instead, the agency points to the City Charter's grant of broad authority to the Board of Health to regulate "all matters affecting the health of the City." The Board argues that the Portion Cap Rule fits comfortably within this broad delegation of power to adopt sanitary regulations dealing with matters affecting the "promotion and protection of health." However, the Board's general jurisdiction statute, although seemingly broad in scope, does not authorize the Board's action.

We think it clear that this general language does not empower the Board of Health to promulgate rules regulating the conduct of the people of the City of New York with respect to all matters having some relation to the public health. If the words of the statute should be so construed, this indeed would be unfettered delegation of legislative power. As Boreali explicitly held, "[E]nactments conferring authority on administrative agencies in broad or general terms must be interpreted in light of the limitations that the Constitution imposes" and "[h]owever facially broad, a legislative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of powers doctrine permits" (Boreali, 71 NY2d at 9). In fact, the City Charter itself provides that the Board of Health may exercise its power to modify the health code as long as it is "not inconsistent with the constitution" or with the laws of the state and the City Charter (see NY City Charter § 558 [b]).

In our view, the City Charter's Enabling Act, granting the Board of Health explicit power to establish, amend, and repeal the Health Code, was clearly intended by the legislature to provide the agency with the discretion to engage in interstitial rulemaking designed to protect the public from inherently harmful and inimical matters affecting the health of the City (see e.g. Grossman v Baumgartner, 17 NY2d 345 [1966] [Court upheld a provision of the Health Code of the City of New York prohibiting, for health reasons, tattooing of a child under 16 years old except by a licensed physician and only for medical [14] purposes]). The general terms employed in the Enabling Act must be construed in relation to the more specific duties imposed and the powers conferred by the act taken as a whole. When thus construed, the general terms are restricted, expressing the true intent and meaning of the legislature. Indeed, although the legislature intended to rely on the Board of Health's expertise in identifying and determining how to regulate inherently harmful matters affecting the health of the City, the Charter provides examples of those general functions when it explicitly grants the agency the power to supervise and regulate the safety of the water and food supplies, as well as the control of diseases (see e.g. NY City Charter § 556 [c] [2], [7], [9]).

If soda consumption represented such a health hazard, then the Sugary Drink Portion Cap Rule would be exactly the kind of interstitial rulemaking intended by the legislature and engaged in by the Board of Health in the past. The Board of Health, however, does not claim that soda consumption can be classified as such a health hazard. Rather, the hazard arises from the consumption of sugary soda in "excess quantity." The risks of obesity and developing diabetes and other illnesses are greater in those who drink soda to excess than in those who drink it in moderation or not at Thus, since soda consumption cannot be classified as a health hazard per se, the Board of Health's action in curtailing its consumption was not the kind of interstitial rulemaking intended by the legislature.

With regard to the third factor, Boreali placed significance on the fact that the legislature had repeatedly tried to pass legislation implementing indoor smoking bans, yet had failed to do so. In the Court's view, this Boreali factor was indicative of the legislature's inability to agree on "the goals and methods that should govern in resolving" the issue (Boreali, 71 NY2d at 13). In this context, an agency's attempt to "take it upon itself to fill the vacuum and impose a solution of its own" is improper (id.). Significantly, Boreali distinguished the case of failed legislative action from mere inaction, to which it did not ascribe the same significance (id.). Therefore, mere legislative inaction on a particular issue should not satisfy this factor.

The situation here is similar to that of the smoking ban in Boreali. Over the past few years, both the City and State legislatures have attempted, albeit unsuccessfully, to target sugar sweetened beverages. For instance, the City Council has rejected several resolutions targeting sugar sweetened beverages (warning labels, prohibiting food stamp use for purchase, [15] and taxes on such beverages).^[6] Moreover, the State Assembly introduced, but has not passed, bills prohibiting the sale of sugary drinks on government property and prohibiting stores with 10 or more employees from displaying candy or sugary drinks at the "check out counter or aisle."^[7] While the Portion Cap Rule employs different means of targeting the sale of certain beverages than those considered by the legislative bodies, it pursues the same end, and thus addresses the same policy areas as the proposals rejected by the State and City legislatures. This is a strong indication that the legislature remains unsure of how best to approach the issue of excessive sugary beverage consumption.

The final Boreali factor in assessing whether the administrative agency has exceeded the bounds of its legislative authority is whether any special expertise or technical competence was involved in the development of the regulation that is challenged. In Boreali, the PHC attempted to use its broad legislative grant of authority to improve public health by developing what the Court called a "simple code" that banned indoor smoking and exempted certain groups (71 NY2d at 14). No technical competence or agency expertise was necessary to develop the code. That the regulations in question in Boreali did not require the agency's specialized expertise indicated to the Court that the agency had engaged in unauthorized policy-making rather than interstitial rulemaking.

Likewise, in this case, we do not believe that the Board of Health exercised any special expertise or technical competence in developing the Portion Cap Rule. The deleterious effects (e.g. [16] obesity) associated with excessive soda consumption are wellknown. Moreover, despite the City's argument to the contrary, the Board did not bring any scientific or health expertise to bear in creating the Portion Cap Rule. Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes. Under the circumstances, it cannot be said that the Board of Health's technical competence was necessary to flesh out details of the legislative policies embodied in the Portion Cap Rule. We find, therefore, that this factor, albeit less compelling than the others, also weighs in favor of invalidating the Sugary Drinks Portion Cap Rule.

Conclusion

In sum, we find that under the principles set forth in. Boreali, the Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners' argument that the subject regulation was arbitrary and capricious.

Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH's legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.

Accordingly, the order of the Supreme Court, New York County (Milton A. Tingling, J.), entered March 11, 2013, which, inter alia, granted the petition and declared invalid respondent New York City Board of Health's amendment to New York City Health Code (24 RCNY) § 81.53 barring the sale of sugary drinks in a cup or container able to contain more than 16 fluid ounces, and enjoined respondents from implementing or enforcing it, should be affirmed, without costs.

[1] The rule set a maximum fine of $200 for each violation.

[2] Petitioners are several interest groups, namely, the New York Statewide Coalition of Hispanic Chambers of Commerce, The New York Korean-American Grocers Association, Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of Teamsters. The National Restaurant Association, The National Association of Theatre Owners of New York State, and The American Beverage Association.

[3] The Charter of the City of New York provides for "distinct legislative and executive branches" (Under 21, Catholic Home Bur. for Dependent Children, 65 NY2d at 356). Section 3 designates the Mayor as "chief executive officer of the city," while section 21 vests the exclusive legislative power in the Council (id.). In general, these co-equal branches of government may not unlawfully infringe on each other's prerogatives (id.; see also Subcontractors Trade Assn., 62 NY2d 422).

[4] For instance, in New York State Health Facilities Assn. v Axelrod, the Court upheld a Medicaid patient access regulation adopted by the PHC, which required new applicants seeking nursing home approval to agree to admit "a reasonable percentage of Medicaid patients" (77 NY2d at 344). Such regulation did not exceed the scope of legislative power delegated to the PHC because it was an "appropriate means for achieving [legislative] ends" (id. at 348). This is because the pertinent statutory provisions directed that the PHC should consider a facility's responsiveness to Medicaid patients and take steps designed to prohibit discrimination against Medicaid patients (id. at 347-348).

[5] See e.g. Editorial, A Ban Too Far, NY Times, May 31, 2012; Michael M. Grynbaum, New York Plans to Ban Sale of Big Sizes of Sugary Drinks, NY Times, May 30, 2012; Editorial, New York Soda Cap Wouldn't Beat Obesity, USA Today, June 3, 2012; Editorial Bd, Slurping Less Soda in New York, Washington Post, June 2, 2012; Paul Whitefield, Life, Liberty and the Pursuit of Doughnuts and Big Gulps, Los Angeles Times, June 1, 2012.

[6] See e.g. New York City Resolution No. 1265 (2012) ("Resolution calling upon the New York State Legislature to pass and the Governor to sign legislation that would add an excise tax on sugar sweetened beverages"); New York City Resolution No. 1264 (2012) ("Resolution calling upon the United States Food and Drug Administration to require warning labels on sugar sweetened beverages"); New York City Resolution No. 0768 (2011) ("Resolution calling upon the United States Department of Agriculture to authorize New York City to add certain sugary drinks to the list of prohibited goods for City residents who receive Food Stamp assistance").

[7] See e.g. 2012 Assembly Bill A10010 (Prohibiting the sale of sugar sweetened beverages at food service establishments and vending machines located on government property); 2010 Senate-Assembly Bill S67004, A41004 (Relating to imposition of a tax on beverage syrups and soft drinks); 2011 Assembly Bill A06229A (Providing for the sale, availability and distribution of healthy foods and beverages on school property and at school sponsored functions); 2010 Assembly Bill A10965 (Prohibiting the purchase of food items which are not nutritional with food stamp program coupons or other access devices related thereto).

23 N.Y.3d 681 (2014)
16 N.E.3d 538
992 N.Y.S.2d 480
2014 NY Slip Op 4804

[682] Michael A. Cardozo, Corporation Counsel, New York City (Richard Dearing, Fay Ng, Leonard J. Koerner, Pamela Seider Dolgow, Mark Muschenheim, Jasmine M. Georges, Spencer Fisher, Zachary W. Carter and Trevor D. Lippman of counsel), for appellants.

[683] Latham & Watkins LLP (Richard P. Bress, of the District of Columbia bar, admitted pro hac vice, William K. Rawson, of the District of Columbia bar, admitted pro hac vice, Lori Alvino McGill, Michael E. Bern, of the District of Columbia bar, admitted pro hac vice, Kala Sherman-Presser, of the District of Columbia bar, admitted pro hac vice, and Andrew D. Prins of counsel), Latham & Watkins, LLP, New York City (James E. [684] Brandt of counsel), for The American Beverage Association, Weil, Gotshal & Manges, LLP, New York City (James W. Quinn, Salvatore A. Romanello and Gregory Silbert of counsel), for The National Restaurant Association, MoloLamken LLP (Steven F Molo and Ben Quarmby of counsel), for The New York Statewide Coalition of Hispanic Chambers of Commerce and another, Rivkin Radler, LLP, Uniondale (Evan H. Krinick, Barry I. Levy and Brian L. Bank of counsel), for Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of Teamsters, and Matthew N. Greller, Esq., LLC, Millburn, New Jersey (Matthew N. Greller of counsel), for The National Association of Theatre Owners of New York State, respondents.

[685] Andrew Goldberg, New York City, for Wilfredo Lopez and another, amici curiae.

Columbia Law School, Center for Constitutional Governance, New York City (Gillian E. Metzger, Richard Briffault and Sara Haviva Mark of counsel), for Gillian E. Metzger and others, amici curiae.

[686] Bromberg Law Office, P.C., New York City (Brian L. Bromberg of counsel), ChangeLab Solutions, Oakland, California (Anne Pearson, Manel Kappagoda, Lindsey Zwicker and Amy Barsky of counsel), and Ohio State University College of Public Health & Moritz College of Law, Columbus, Ohio (Micah Berman of counsel), for National Association of County and City Health Officials and others, amici curiae.

[687] Featherstonhaugh, Wiley & Clyne, LLP, Albany (James D. Featherstonhaugh of counsel), for The Business Council of New York State, Inc. and others, amici curiae.

Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C. (Sarah R. Prins, Roy T. Englert, Jr., and Alex Potapov of counsel), and Washington Legal Foundation (Cory L. Andrews and Richard A. Samp of counsel), for Washington Legal Foundation and another, amici curiae.

Watkins Bradley LLP, New York City (Adam Francois Watkins and Stephanie F. Bradley of counsel), for Maria Del Carmen Arroyo and others, amici curiae.

[688] King & Spalding LLP, New York City (David M. Fine of counsel), and King & Spalding LLP, Atlanta, Georgia (Jeffrey S. Cashdan and Merritt E. McAlister of counsel), for New York State Conference of the National Association for the Advancement of Colored People and others, amici curiae.

Shapiro, Arato & Isserles LLP, New York City (Alexandra A.E. Shapiro, Marc E. Isserles and Chetan A. Patil of counsel), for The Chamber of Commerce of the United States of America and others, amici curiae.

Reese Richman LLP, New York City (Kim E. Richman of counsel), for Paul A. Diller and others, amici curiae.

[689] Whatley Kailas, LLP, New York City (Patrick J. Sheehan of counsel), and Public Good Law Center, Berkeley, California (Seth E. Mermin and Julia Z. Marks of counsel), for National Alliance for Hispanic Health and others, amici curiae.

Jones Day, Washington, D.C. (Anthony J. Dick, Noel J. Francisco, Ryan D. Newman, William D. Coglianese, Sarah A. Hunger and Matthew R. McGuire of counsel), for Eric Lane, amicus curiae.

Judges GRAFFEO, SMITH and ABDUS-SALAAM concur with Judge PIGOTT; Judge ABDUS-SALAAM in a concurring opinion; Judge READ dissents and votes to reverse in an opinion in which Chief Judge LIPPMAN concurs; Judge RIVERA taking no part.

[690] OPINION OF THE COURT

PIGOTT, J.

We hold that the New York City Board of Health, in adopting the "Sugary Drinks Portion Cap Rule," exceeded the scope of its regulatory authority. By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York.

I.

The New York City Board of Health is part of the City's Department of Health and Mental Hygiene and consists of the Commissioner of that Department, the Chairperson of the Department's Mental Hygiene Advisory Board, and nine other members, appointed by the Mayor. In June 2012, as part of its effort to combat obesity among City residents, the Department proposed that the Board amend article 81 of the City Health Code so as to restrict the size of cups and containers used by food service establishments for the provision of sugary beverages. After a preliminary vote by the Board, a notice of public hearing was published, seeking comments from the public. The substantial number of comments both before and during the July hearing indicated a groundswell of public interest and concern. On September 13, 2012, the Board voted, with one abstention, to adopt the Department's proposed rule — referred to as the "Portion Cap Rule" — to go into effect in March 2013.

The Portion Cap Rule provides in relevant part that "[a] food service establishment may not sell, offer, or provide a sugary drink in a cup or container that is able to contain more than 16 fluid ounces" and "may not sell, offer or provide to any customer a self-service cup or container that is able to contain more than 16 fluid ounces" (NY City Health Code [24 RCNY] § 81.53 [b], [c]). A "sugary drink" is defined as a nonalcoholic beverage that "is sweetened by the manufacturer or establishment with sugar or another caloric sweetener; ... has greater than 25 calories per 8 fluid ounces of beverage; ... [and] does [691] not contain more than 50 percent of milk or milk substitute by volume as an ingredient" (NY City Health Code [24 RCNY] § 81.53 [a] [1]). The Portion Cap Rule does not apply to establishments, such as supermarkets and convenience stores, that are subject to regulation and inspection by the New York State Department of Agriculture and Markets.

II.

In October 2012, petitioners, six national or statewide not-for-profit and labor organizations, commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking to invalidate the Portion Cap Rule. In addition to the Board of Health, the Department of Health and Mental Hygiene and its Commissioner are named as respondents.

On March 11, 2013, Supreme Court, New York County granted the petition, declared the Portion Cap Rule invalid, and permanently enjoined respondents from implementing or enforcing it. Supreme Court addressed two arguments raised by petitioners — first, whether the Board of Health had exceeded its regulatory authority "and impermissibly trespassed on legislative jurisdiction" (2013 NY Slip Op 30609[U], *11 [Sup Ct, NY County 2013]) and second, whether the Portion Cap Rule is "arbitrary and capricious" (id. at *35). The court ruled in favor of petitioners on both contentions.

With respect to the first issue, the court surveyed the history of the New York City Charter and reached the conclusion that the elective New York City Council is the sole legislative body in the City, rejecting respondents' contention that the Board of Health has inherent law-making authority. Supreme Court applied our decision in Boreali v Axelrod (71 NY2d 1 [1987]), in which we held that the New York State Public Health Council overstepped its regulatory authority when it adopted regulations prohibiting smoking in a wide variety of indoor areas open to the public that had previously been considered, but not adopted, by the state legislature. Supreme Court addressed the four considerations that we had identified in Boreali, and concluded that each of those factors weighed in favor of invalidating the Portion Cap Rule (see 2013 NY Slip Op 30609[U] at *11-34). Finally, Supreme Court found the Portion Cap Rule arbitrary and capricious, noting that "it applies to some but not all food establishments in the City, [and] it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories" (2013 NY Slip Op 30609[U] at *35).

[692] The Appellate Division unanimously affirmed Supreme Court's order, also rejecting the contention that the Board has inherent legislative power, and holding that "under the principles set forth in Boreali, the Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers" (110 AD3d 1, 16 [1st Dept 2013]). The Appellate Division did not reach the issue of whether the Portion Cap Rule is arbitrary and capricious.

With respect to the first Boreali factor, relating to whether the agency engaged in the balancing of competing concerns of public health and economic cost, thus acting on its own idea of sound public policy, the Appellate Division reasoned that the Board did not act solely with a view toward public health considerations but engaged in policymaking when it adopted the Portion Cap Rule. The court observed that the Portion Cap Rule is "especially suited for legislative determination as it involves `difficult social problems,' which must be resolved by `making choices among competing ends'" (110 AD3d at 11, quoting Boreali, 71 NY2d at 13).

With regard to the second Boreali factor, whether the agency created its own comprehensive set of rules without benefit of legislative guidance, the Appellate Division concluded that the Board illicitly created the Portion Cap Rule on a "clean slate," and was not merely conducting permissible interstitial rulemaking. The court noted that "the Board of Health does not dispute that neither the state legislature nor the City Council has ever promulgated a statute defining a policy with respect to excessive soda consumption" (id. at 13).

Turning to the third Boreali factor, which relates to whether the challenged rule governs an area in which the legislature has repeatedly tried to reach agreement in the face of substantial public debate and vigorous lobbying by interested factions, the Appellate Division noted that

"[o]ver the past few years, both the City and State legislatures have attempted, albeit unsuccessfully, to target sugar sweetened beverages. For instance, the City Council has rejected several resolutions targeting sugar sweetened beverages (warning labels, prohibiting food stamp use for purchase, and taxes on such beverages). Moreover, the State Assembly [693] introduced, but has not passed, bills prohibiting the sale of sugary drinks on government property and prohibiting stores with 10 or more employees from displaying candy or sugary drinks at the check out counter or aisle. While the Portion Cap Rule employs different means of targeting the sale of certain beverages than those considered by the legislative bodies, it pursues the same end, and thus addresses the same policy areas as the proposals rejected by the State and City legislatures. This is a strong indication that the legislature remains unsure of how best to approach the issue of excessive sugary beverage consumption." (Id. at 14-15 [footnotes and internal quotation marks omitted].)

Finally, with respect to the fourth Boreali factor, whether the development of the rule required expertise in the field of health, the Appellate Division concluded that the Board had not "exercised any special expertise or technical competence in developing the Portion Cap Rule" (110 AD3d at 15).

We granted respondents leave to appeal (22 NY3d 853 [2013]). Subsequently, we accepted amicus briefs from a number of not-for-profit organizations, research and policy centers, and professors of law, as well as 32 individual members of the New York City Council and the New York City Public Advocate. The quantity of these submissions is an indication of the interest of the subject to diverse persons, and the briefs have been of considerable assistance to us in our deliberations. We now affirm the Appellate Division's order.

First, we address respondents' claim that the Board, having been created by the state legislature, has legislative powers separate and apart from the City Council. The City Charter unequivocally provides for distinct legislative and executive branches of New York City government. The City Council is the sole legislative branch of City government; it is "the legislative body of the city.... vested with the legislative power of the city" (NY City Charter § 21 [emphasis added]; accord Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 356 [1985]; Subcontractors Trade Assn. v Koch, 62 NY2d 422, 427 [1984]). The New York State Constitution mandates that, with an exception not applicable here, "[e]very local government ... shall have a legislative body elective by [694] the people thereof" (NY Const, art IX, § 1 [a]; see also Municipal Home Rule Law § 2 [7]), and that elective body in New York City is the City Council.^[1]

Respondents, however, contend that the Board of Health is a unique body that has inherent legislative authority. We disagree. The provision of the City Charter principally cited by respondents — setting out the authority of the Board to "add to and alter, amend or repeal any part of the health code, ... [to] publish additional provisions for security of life and health in the city and [to] confer additional powers on the [Department of Health and Mental Hygiene] not inconsistent with the constitution, laws of this state or this charter" (NY City Charter § 558 [b]) — reflects only a regulatory mandate, not legislative authority. It is true that the Board "may embrace in the health code all matters and subjects to which the power and authority of the [Department of Health and Mental Hygiene] extends" (NY City Charter § 558 [c]) and that the Charter refers to the Board's supervision over "the reporting and control of communicable and chronic diseases and conditions hazardous to life and health" and "the abatement of nuisances affecting or likely to affect the public health" (NY City Charter § 556 [c] [2]; see also § 556 [c] [9] [referring to Board's authority to "supervise and regulate the food and drug supply of the city and other businesses and activities affecting public health in the city"]). Nonetheless, the Charter contains no suggestion that the Board of Health has the authority to create laws. While the Charter empowers the City Council "to adopt local laws ... for the preservation of the public health, comfort, peace and prosperity of the city and its inhabitants" (NY City Charter § 28 [a]), the Charter restricts the Board's rulemaking to the publication of a health code, an entirely different endeavor.

Moreover, the language in section 558 (c) of the Charter — describing the Board's purview as comprising "all matters and subjects" within the authority of the Department of Health and [695] Mental Hygiene — was included in 1979 to preclude the Board from attempting to regulate areas not related to health. At that time, the City's Committee on Health became concerned that "[r]egulations passed by the Board of Health may be overly broad and so invade the [province] of the City Council's legislative authority" (Rep of Comm on Health in Favor of Approving and Adopting a Local Law to Amend the New York City Charter in relation to Defining Powers of Board of Health, Local Law Bill Jacket, Local Law No. 5 [1979] of City of NY). The Committee proposed a bill to clarify the Board's authority, which was passed by the City Council in February 1979 and approved by the Mayor the following month (Local Law No. 5 [1979] of City of NY, amending NY City Charter § 558 [c]). Far from indicating a wide legislative jurisdiction, as respondents contend, section 558 (c) was intended to ensure that the Board of Health not regulate too broadly.

Respondents offer no practical solution to the difficulties that would arise from treating the Board and the City Council as coequal legislative bodies. On respondents' theory, it is unclear what the law in New York City would be were the Board to pass a health "law" that directly conflicted with a local law of the City Council. It is no solution to this difficulty that the state legislature could step in to resolve such a conflict. In short, it is clear from the Charter that the Board's authority, like that of any other administrative agency, is restricted to promulgating "rules necessary to carry out the powers and duties delegated to it by or pursuant to federal, state or local law" (NY City Charter § 1043 [a]). A rule has the force of law, but it is not a law; rather, it "implements or applies law or policy" (NY City Charter § 1041 [5] [i]).

Respondents point out our passing references to the Board's "legislative authority" in Grossman v Baumgartner (17 NY2d 345, 351 [1966] [upholding Board's former rule prohibiting tattooing by non-physicians]) and in a footnote in Matter of Schulman v New York City Health & Hosps. Corp. (38 NY2d 234, 237 n 1 [1975]). A more accurate description is found in the words we used to describe the Board's rule earlier in the Grossman opinion: "an administrative regulation which is legislative in nature" (17 NY2d at 349).

Another of our cases cited by respondents, People v Blanchard (288 NY 145 [1942]), held that the Board may make it an offense to keep "unwholesome poultry" and a defendant may be convicted of a misdemeanor for violating that Sanitary Code [696] regulation. But Blanchard stands for the proposition that, even though the Board does not possess "substantive law-making power" (id. at 147) and "has not been licensed to define any criminal offense" (id. at 148), it may pass a regulation with criminal consequences because "it is the city charter ... and the Penal Law ... that make any violation of the Sanitary Code a misdemeanor" (id.). Blanchard emphasizes the Board's regulatory, as opposed to law-making, capacity.

Given our position that the Board's role is regulation, not legislation,^[2] the next issue raised in this appeal is whether the Board properly exercised its regulatory authority in adopting the Portion Cap Rule. The parties and the lower courts correctly analyze this question by using the conceptual framework of Boreali. Because a doctrine of "separation of powers [is] delineated in the City Charter" (Under 21, Catholic Home Bur. for Dependent Children, 65 NY2d at 353; see also id. at 356), Boreali provides the appropriate framework.

Boreali sets out four "coalescing circumstances" present in that case that convinced the Court "that the difficult-to-define line between administrative rule-making and legislative policymaking ha[d] been transgressed." (Boreali, 71 NY2d at 11.) We explained that "[w]hile none of these circumstances, standing alone, is sufficient to warrant the conclusion that the [Public Health Council] has usurped the Legislature's prerogative, all of these circumstances, when viewed in combination, paint a portrait of an agency that has improperly assumed for itself the open-ended discretion to choose ends" that is the "prerogative[] of [a] Legislature" (id. at 11, 18 [internal quotation marks and square brackets omitted]).

As the term "coalescing circumstances" suggests, we do not regard the four circumstances as discrete, necessary conditions that define improper policymaking by an agency, nor as criteria that should be rigidly applied in every case in which an agency is accused of crossing the line into legislative territory. Rather we treat the circumstances as overlapping, closely related factors that, taken together, support the conclusion that an agency [697] has crossed that line. Consequently, respondents may not counter petitioners' argument merely by showing that one Boreali factor does not obtain.

Any Boreali analysis should center on the theme that "it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends" (71 NY2d at 13). The focus must be on whether the challenged regulation attempts to resolve difficult social problems in this manner. That task, policymaking, is reserved to the legislative branch.

V.

In Boreali, the Court initially pointed out that the Public Health Council's scheme for protecting nonsmokers indicated its "effort to weigh the goal of promoting health against its social cost and to reach a suitable compromise." We took this to violate the principle that "[s]triking the proper balance among health concerns, cost and privacy interests ... is a uniquely legislative function" (Boreali, 71 NY2d at 12). We reasoned that "to the extent that the agency has built a regulatory scheme on its own conclusions about the appropriate balance of trade-offs between health and cost to particular industries in the private sector, it was acting solely on its own ideas of sound public policy and was therefore operating outside of its proper sphere of authority" (id. [internal quotation marks and square brackets omitted]). Here, similarly, the Appellate Division noted that the Board of Health included exemptions and other indicators of political compromise in its Portion Cap Rule, notably the exclusion of food service establishments subject to the State Department of Agriculture and Markets. The Appellate Division interpreted this as evidence that the Board was engaged in policymaking, rather than simply in protecting the health of New York City residents.

However, the promulgation of regulations necessarily involves an analysis of societal costs and benefits. Indeed, cost-benefit analysis is the essence of reasonable regulation; if an agency adopted a particular rule without first considering whether its benefits justify its societal costs, it would be acting irrationally. We stated as much in Boreali, noting that "many regulatory decisions involve weighing economic and social concerns against the specific values that the regulatory agency is mandated to promote" (Boreali, 71 NY2d at 12). Therefore, Boreali should not be interpreted to prohibit an agency from attempting to [698] balance costs and benefits.^[3] Rather, the Boreali court found that the Public Health Council had "not been given any legislative guidelines at all for determining how the competing concerns of public health and economic cost are to be weighed" (id.).

Here, instead of an outright ban on sugary beverages, the Board decided to reduce their consumption by the expedient of limiting maximum container size, thus making it less convenient for consumers to exceed recommended limits. The more cautious approach, however, does not save the Portion Cap Rule. By restricting portions, the Board necessarily chose between ends, including public health, the economic consequences associated with restricting profits by beverage companies and vendors, tax implications for small business owners, and personal autonomy with respect to the choices of New York City residents concerning what they consume. Most obviously, the Portion Cap Rule embodied a compromise that attempted to promote a healthy diet without significantly affecting the beverage industry. This necessarily implied a relative valuing of health considerations and economic ends, just as a complete prohibition of sugary beverages would have. Moreover, it involved more than simply balancing costs and benefits according to preexisting guidelines; the value judgments entailed difficult and complex choices between broad policy goals — choices reserved to the legislative branch.

Significantly, the Portion Cap Rule also evidenced a policy choice relating to the question of the extent to which government may legitimately influence citizens' decision-making. In deciding to use an indirect method — making it inconvenient, but not impossible, to purchase more than 16 fluid ounces of a sugary beverage while dining at a food service establishment — the Board of Health rejected alternative approaches, ranging from instruction (i.e. health warnings on large containers or near vending machines) to outright prohibition. This preference for an indirect means of achieving compliance with goals of healthier intake of sugary beverages was itself a policy choice, relating to the degree of autonomy a government permits its citizens to exercise and the ways in which it might seek to modify their behavior indirectly.

[699] By choosing between public policy ends in these ways, the Board of Health engaged in law-making beyond its regulatory authority, under the first Boreali factor. Notably, such policymaking would likely not be implicated in situations where the Board regulates by means of posted warnings (e.g. calorie content on menus) or by means of an outright ban of a toxic substance (e.g. lead paint). In such cases, it could be argued that personal autonomy issues related to the regulation are nonexistent and the economic costs either minimal or clearly outweighed by the benefits to society, so that no policymaking in the Boreali sense is involved.

To apply the distinction between policymaking and rulemaking, a court is thus required to differentiate between levels of difficulty and complexity in the agency's task of weighing competing values. For example, when an agency regulates the purity of drinking water, or prohibits the use of interior lead paint, or requires guards in the windows of high-rise apartments housing children, it chooses among ends (e.g. a landowner's convenience and short-term profit versus the safety, health and well-being of tenants), but the choices are not very difficult or complex. This is because the connection of the regulation with the preservation of health and safety is very direct, there is minimal interference with the personal autonomy of those whose health is being protected, and value judgments concerning the underlying ends are widely shared.

By contrast, when an agency in our present time either prohibits the consumption of sugary beverages altogether or discourages it by regulating the size of the containers in which the drinks are served, its choices raise difficult, intricate and controversial issues of social policy. Few people would wish to risk the physical safety of their children who play near high-rise apartment windows for the sake of unobstructed views. However, the number of people who overindulge in sugary drinks, at a risk to their health, is clearly significant. An agency that adopts a regulation, such as the Portion Cap Rule or an outright prohibition of sugary beverages, that interferes with commonplace daily activities preferred by large numbers of people must necessarily wrestle with complex value judgments concerning personal autonomy and economics. That is policymaking, not rulemaking.

VI.

With respect to the second Boreali factor, respondents are unable to point to any legislation concerning the consumption of [700] sugary beverages by the state legislature or City Council that the Portion Cap Rule was designed to supplement. Although "[t]he Legislature is not required in its enactments to supply agencies with rigid marching orders" and the legislative branch may, while declaring "its policy in general terms by statute, endow administrative agencies with the power and flexibility to fill in details and interstices and to make subsidiary policy choices consistent with the enabling legislation" (Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398, 410 [1991]), the policy choices made here were far from "subsidiary." Devising an entirely new rule that significantly changes the manner in which sugary beverages are provided to customers at eating establishments is not an auxiliary selection of means to an end; it reflects a new policy choice. In short, this is not a case in which "the basic policy decisions underlying the [challenged] regulations have been made and articulated by the Legislature" (Bourquin v Cuomo, 85 NY2d 781, 785 [1995], quoting Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, 348 [1991]).

Therefore, it is clear that the Board of Health wrote the Portion Cap Rule without benefit of legislative guidance, and did not simply fill in details guided by independent legislation. Because there was no legislative articulation of health policy goals associated with consumption of sugary beverages upon which to ground the Portion Cap Rule, the application of the second Boreali factor generates the same conclusion as the first factor: the adoption of the rule involved the choosing of ends, or policymaking.

VII.

With regard to the third Boreali factor, little needs to be added to the Appellate Division's analysis. We again caution, however, that the Boreali factors do not constitute rigid conditions, all of which must be met in order for petitioners to prevail. Here, inaction on the part of the state legislature and City Council, in the face of plentiful opportunity to act if so desired, simply constitutes additional evidence that the Board's adoption of the Portion Cap Rule amounted to making new policy, rather than carrying out preexisting legislative policy.

In light of Boreali's central theme that an administrative agency exceeds its authority when it makes difficult choices between public policy ends, rather than finds means to an end chosen by the legislature, we need not, in this appeal, address [701] the fourth Boreali factor: whether special expertise or technical competence was involved in the development of the rule. We do not mean to imply that the fourth factor will always lack significance. A court might be alerted to the broad, policy-making intent of a regulation, and the absence of any perceived need for agency expertise, by the fact that the rule was adopted with very little technical discussion. Here, regardless of who or which arm of government first proposed or drafted the Portion Cap Rule, and regardless of whether the Board exercised its considerable professional expertise or merely rubber-stamped a rule drafted outside the agency, the Portion Cap Rule is invalid under Boreali.

VIII.

In sum, the New York City Board of Health exceeded the scope of its regulatory authority by adopting the Portion Cap Rule. Supreme Court properly declared the rule invalid and enjoined its implementation.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

ABDUS-SALAAM, J. (concurring).

The majority appropriately employs a flexible case-specific analysis of the New York City Board of Health's authority and correctly concludes that when the Board issued the peculiar "Sugary Drinks Portion Cap Rule," it exercised a power which no legislative body has delegated to it (see generally majority op at 690, 696-701). Because I agree with the core rationale and result of the majority's opinion, I join that opinion in full. I write separately to emphasize the carefully circumscribed nature of the Court's decision.

Importantly, in concluding that the Board exceeded the bounds of its health-related regulatory authority, the majority does not give dispositive effect to any single aspect of the Board's conduct (see majority op at 696-697). As I see it, the majority determines that the Board improperly engaged in lawmaking based on the unique combination of the following characteristics of the portion cap rule: (1) the rule sets a broadly applicable policy affecting a large portion of the jurisdiction's (New York City's) population; (2) the rule involves a value judgment about voluntary consumer behavior; (3) the rule addresses a field of potential regulation that relevant legislative bodies have considered but not acted upon; and (4) the rule does not respond to a clearly identified, widespread health crisis which [702] has a simple, well-understood and agreed-upon cause, such as an infectious disease. In finding that these factors render the portion cap rule an impermissible political and legislative enactment, I do not understand the majority to establish any rigid decisional framework to be applied mechanically to other actions undertaken by the Board or separate administrative agencies in the future.

Contrary to the dissent's assertions (see dissenting op at 702, 707-714), our decision does not signal any significant departure from existing precedent regarding administrative law in general or the scope of the Board's authority in particular. As my colleagues in the majority and I explain (see majority op at 694-696), we have no quarrel with much of the dissent's historical analysis of the Board's authority or past decisions which have taken an expansive view of that authority in particular contexts. Indeed, no one should read today's decision too broadly. We simply conclude that, under the circumstances of this case, the Board ran afoul of separation of powers principles by creating the portion cap rule.

READ, J. (dissenting).

In Boreali v Axelrod (71 NY2d 1 [1987]), we invalidated a regulation on indoor smoking promulgated by a state health agency on the ground that it was an exercise of legislative rather than regulatory authority, and was therefore a violation of the separation-of-powers doctrine. Today the Court again declares that a controversial regulation runs afoul of separation of powers. In so doing, the majority misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century. Neither Boreali nor any other doctrine in our jurisprudence compels this unhappy result. I respectfully dissent.

I.

During his third mayoral term, New York City Mayor Michael Bloomberg made the fight against obesity, especially among children, a top priority for his administration. The skills and powers of many New York City agencies were brought to bear, including the New York City Departments of Education, Transportation, Parks and City Planning. The most active agency, though, was the New York City Department of Health and Mental Hygiene (the Department), which initiated and [703] worked on a host of public health programs aimed at improving the nutrition and physical fitness of New York City residents (see generally Reversing the Epidemic: New York City Obesity Task Force Plan to Prevent and Control Obesity [May 2012]).

In June 2012, the Department proposed a rule to the New York City Board of Health (hereafter, generally referred to as the Board) for inclusion in New York City's Health Code. That rule, which the Board calls "the Portion Cap Rule" and petitioners, "the Soda Ban" (hereafter, generally referred to as the Rule), set a ceiling on the serving size of certain kinds of sugary drinks in food service establishments historically regulated by the Department (see NY City Health Code [24 RCNY] § 81.53). Other kinds of drinks and establishments were excepted from the regulation's coverage (see id.).

In July 2012, the Board held a public hearing on the proposed rule and received voluminous public comments. After considering these comments, the Board voted unanimously to approve the Rule as proposed by the Department, and it was added to the Health Code in September 2012. Petitioners' lawsuit followed one month later. They argued that the Board had acted beyond its delegated power in adopting the Rule, and asked the court to restrain the Board from enforcing the Rule on the ground it was ultra vires; to declare that the delegation of power to the Board in the New York City Charter (the City Charter) violated article IX, § 1 (a) of the New York State Constitution, which provides that every local government "shall have a legislative body elective by the people thereof," to the extent that the City Charter authorized the Board to adopt the Rule; or to restrain the Board on the basis it had acted arbitrarily and capriciously in adopting the Rule.

As an initial matter, correct resolution of this appeal depends upon an accurate understanding of the source and extent of the Board's authority. Petitioners take the position that the Board's power is delegated by the New York City Council (the Council) under the City Charter. Similarly, Supreme Court examined the City Charter's history to conclude that the Board has always been a city administrative body, chiefly concerned with infectious disease and harmful substances. The Appellate Division appears to have accepted this conclusion, chiding the Board for not declaring sugary drinks "inherently unhealthy" before regulating them (110 AD3d 1, 11 [2013]). And now the majority chimes in that the Board derives its authority "like that of any other administrative agency" from the City Charter, and faults [704] the Board for presuming to analogize its unique powers to those of a legislative body (see majority op at 695).

But the history of the City's approaches to the challenges of public health supports the Board's portrayal of its authority. As the Board points out, whether those powers are "characterized as legislative or regulatory in nature" is somewhat beside the point because, in either event, its "authority is broad, and its special structure allows serious issues of public health to be addressed" expeditiously (emphasis added). As discussed in detail in this opinion, the Board's powers to enact substantive rules and standards in the area of public health derive from state — not local — law. Thus, the Board is not required to stay its hand absent authorization from the Council to regulate sugary drinks. The only question on this appeal should be whether the Board, in adopting the Rule, acted reasonably within the bounds of its state-delegated powers.

II.

Historical Overview

The earliest public health regulations in New York City (the City) focused on the quarantine and inspection of ships attempting to call at the harbor. State statutes provided for this process in some detail, and empowered the governor or the mayor to give the green light to waiting vessels (see e.g. L 1784, ch 57; L 1794, ch 53). In 1796, the New York State Legislature shifted these powers to an appointed "health officer" and appointed "health commissioners," and also directed physicians to begin reporting cases of infectious disease to these officials (see L 1796, ch 38). The legislature also provided that the mayor and the common council could make "bye-laws" for clearing and filling streets or lots, and for removing noxious or dangerous industries or businesses to protect the public health (see id.). In short order the power to make these "bye-laws" was moved by state statute to the appointed health officials (see L 1798, ch 65).

The term "board of health" first appears in state statutes in 1811 (see L 1811, ch 175). Throughout the first half of the 19th century, the New York State Legislature passed detailed laws expanding the procedures and powers of this predecessor of the modern-day Board, including the regulation of certain products within city limits, such as animal hides and cotton (see e.g. L 1820, ch 229; L 1823, ch 71, § 39). In addition to specific directives, the [705] legislature also included broad grants of power to regulate public health generally; for example, authorizing all existing boards of health "[t]o make regulations, in their discretion, concerning the place and mode of quarantine; ... and all such other regulations as they shall think necessary and proper for the preservation of the public health" (L 1832, ch 333, § 5 [4]).

Then followed a brief period where public health regulation was entrusted to elected officials. In 1850, the legislature directed that the Board would consist not of appointees, but of the mayor and the members of the common council, who would sit as the Board and would assume all responsibilities previously entrusted to that body (see L 1850, ch 275). This experiment was short-lived: the legislature returned the Board's composition to a group of appointed experts in 1866, this time to sit as the head of the newly-minted Metropolitan Sanitation District, which included the counties of New York, Kings, Westchester, and Richmond.

The enabling statute's text leaves no doubt about the separate authority vested in the Board, stating that

"said board shall also possess ... throughout said district, all the power and authority for the protection of life or health, or the care or preservation of health, or persons diseased or threatened therewith, conferred by any law or ordinance ... upon the Mayor, Common Council, Board of Health, or the Health Officers ... All the aforesaid powers are to be possessed and exercised as fully as if herein repeated and separately conferred upon said Board" (L 1866, ch 74, § 12).

The statute also explicitly empowered the Board to "enact such by-laws, rules and regulations as it may deem advisable, in harmony with the provisions and purposes of this act" (L 1866, ch 74, § 20). Although the Metropolitan Sanitation District itself was also short-lived — and ahead of its time — the fundamental structure established by the 1866 statutes has largely endured.

In 1870, the District was disbanded and its powers (at least in the City) were transferred wholesale to the new Department of Health, with, again, the Board at its core (see L 1870, ch 137, § 90; L 1870, ch 383, § 26). In 1873, the "by-laws, rules and regulations" mentioned in 1866 were given a formal title, the "Sanitary Code," and the Board was, again, vested by the state legislature with the sole power to amend and modify these rules [706] (see L 1873, ch 335, § 82). Throughout the remaining decades of the 19th century, the legislature repeatedly expanded and reaffirmed the Board's powers and independence in the City (see e.g. L 1883, ch 430; L 1882, ch 410, § 278; L 1874, ch 636).

Consistent with the state legislature's actions, we took an expansive view of the Board's powers throughout this period. In Metropolitan Bd. of Health v Heister (37 NY 661 [1868]), we heard four consolidated cases in which the defendants argued that the Board was without power to pass ordinances regulating the driving and slaughtering of cattle within city limits, or to hold summary adjudications penalizing violations of these rules (id. at 665). The legislature had given no direction to the Board concerning livestock regulations in the 1866 statute, although it had supplied extensive instructions on other matters. Nevertheless, after an examination of statutory history, we concluded that

"[t]hese acts show that, from the earliest organization of the government, the absolute control over persons and property, so far as the public health was concerned, was vested in boards or officers, who exercised a summary jurisdiction over the subject, and who were not bound to wait the slow course of the law, and that juries had never been used in this class of cases. The governor, the mayor, health officers under various names, were the persons intrusted with the execution of this important public function; and they were always empowered to act in a summary manner" (Heister at 670; see also Polinsky v People, 73 NY 65, 69-70 [1878] ["That the Legislature in the exercise of its constitutional authority may lawfully confer on boards of health the power to enact sanitary ordinances, having the force of law within the districts over which their jurisdiction extends, is not an open question. This power has been repeatedly recognized and affirmed"]).

The consolidation of various municipalities into the New York City we know today began in 1897 with passage of the first Greater New York City Charter (see L 1897, ch 378). That charter established a statutory framework for the Board that is notably similar to both the reforms of 1866 and the current City Charter. It provided for a department of health, with a board of appointed officers as its head (see 1897 City Charter § 1167); it [707] then specified the powers and duties of each, first in broad terms, stating as follows:

"All the authority, duty and powers heretofore conferred or enjoined upon the health departments, boards of health, health and sanitary officers ... in any of the territory now within or hereafter to become a part of The City of New York ... are hereby conferred upon and vested in and enjoined upon, and shall hereafter be exclusively exercised in The City of New York by the department of health, and board of health, created by this act" (1897 City Charter § 1168).^[4]

As the preceding discussion demonstrates, by the dawn of the 20th century, the legislature and the courts had long understood that these consolidated powers were broad in scope, and — importantly for this appeal — that the Board could act independently within its mandate from the legislature. Further reinforcing this interpretation is the language enabling the Board to create, amend and enforce the Sanitary Code; specifically,

"[s]aid board of health is hereby authorized and empowered, from time to time, to add to or to alter, amend or annul any part of the said sanitary code... The board of health may embrace therein all matters and subjects to which, and so far as, the power and authority of said department of health extends, not limiting their application to the subject of health only" (1897 City Charter § 1172).

This language continued through decades of consolidations and amendments of the City Charter, renaming of departments and renumbering of charter provisions (see e.g. 1901 City Charter §§ 1168, 1172; 1938 City Charter §§ 556, 558 [b], [c], [f]; 1961 City Charter §§ 556, 558[b], [c], [f]).

Our interpretation of these provisions remained constant. We repeatedly affirmed the broad nature of the powers vested in and duties conferred upon the Board by the New York State Legislature (see e.g. People v Blanchard, 288 NY 145, 147 [1942] [The Sanitary Code (now the Health Code) may, therefore, "be taken to be a body of administrative provisions sanctioned by a [708] time-honored exception to the principle that there is to be no transfer of the authority of the Legislature"]; Matter of Bakers Mut. Ins. Co. of N.Y. [Department of Health of City of N.Y.], 301 NY 21, 27 [1950] [the legislature has specified that "(t)he Sanitary Code of the City of New York (now the Health Code) is to have within that city the force and effect of State law"]; Matter of Schulman v New York City Health & Hosps. Corp., 38 NY2d 234, 237 n 1 [1975] ["(T)he Board of Health has been recognized by the Legislature as the sole legislative authority in the field of health regulation in the City of New York" (emphasis added)]). As the Board points out in its briefing here, we have often characterized its powers as "legislative" (see e.g. Grossman v Baumgartner, 17 NY2d 345, 351 [1966] ["The deduction is clear from section 558 of the City Charter — which empowers the Board of Health to legislate in the field of health generally, including the control of communicable diseases ... that the Legislature intended the Board of Health to be the sole legislative authority within the City of New York in the field of health regulations as long as those regulations were not inconsistent with or contrary to State laws dealing with the same subject matter" (emphases added)]), and "well-nigh plenary" (see People ex rel. Knoblauch v Warden, 216 NY 154, 162 [1915]; see also Paduano v City of New York, 45 Misc 2d 718, 721 [Sup Ct, NY County 1965], affd on op below 24 AD2d 437 [1st Dept 1965], affd 17 NY2d 875 [1966], cert denied 385 US 1026 [1967] [lower court cited to and quoted from the Report of the 1936 New York City Charter Revision Commission (at 38), which stated that "(b)y its power to adopt a sanitary code the Board has plenary powers of legislation" (emphasis added)]).

Petitioners' Contentions

This review of statutes and cases puts paid to petitioners' key contentions. First, Supreme Court's interpretation of the Board's power was much too narrow. It is true that the statutes empowering the Board have listed specific areas of responsibility, particularly with regard to communicable diseases, as they do today. But the most historically consistent reading of this fact is that the legislature has entrusted the Board to act with a great deal of discretion, while also ensuring that it will address specified areas of concern, and has provided procedures for doing so. That the residents of New York City no longer count typhoid and dysentery among their chief health concerns is a sign that those scourges have been conquered, not a ground for [709] preventing the Board from turning its attention to contemporary public health threats.

Second, petitioners insist that the expansive language that our opinions have used to describe the Board's power was "stray" or "imprecise"; the majority dismisses our depiction of the Board's powers in Grossman and Schulman as mere "passing references" (majority op at 695). But it is impossible to wish away the large body of case law in which we have repeatedly described the source of the Board's delegated authority (the New York State Legislature) and its extent (as broad as it needs to be to protect public health). While it may sound odd in the context of modern-day administrative law to call an agency's authority "legislative," the Board's authority is quite clearly at least "nearly legislative." Our many statements to this effect simply recognized what the state legislature has expressed through nearly two centuries of consistent statutes.

Turning to more recent history, petitioners argue that the significant amendments to the home rule regime enacted in 1964 have somehow altered the Board's fundamental authority. In particular, they point out that under these statutes, local legislatures can pass laws relating to the "safety, health and well-being of persons" within their jurisdiction (see Municipal Home Rule Law § 10 [1] [ii] [a] [12]), and that this local power is not explicitly restricted (see Municipal Home Rule Law § 11 [preempting local laws relating to certain topics such as education and labor]). But the Municipal Home Rule Law's savings clauses explicitly preserve the power of any existing "board, body or officer," and continue the force and effectiveness of any existing laws "until lawfully repealed, amended, modified or superseded" (Municipal Home Rule Law §§ 50 [3]; 56 [1]).

Finally, petitioners contend that reforms to the Charter in 1989 stripped the Board of independent authority, even in its traditional realm; the majority seems to agree (see majority op at 694 n 1). The 1989 revisions to the Charter eliminated the former Board of Estimate from city governance and established the City Administrative Procedure Act. Petitioners theorize that because these revisions put such emphasis on the principle that the Council is the City's sole legislative authority, the Board perforce operates under a delegation from the Council. This, of course, is an argument by implication, as it does not — because it cannot — rely on any express statement of law.

The 1989 revisions were concerned with the particular problems presented by the former Board of Estimate, and a lack [710] of minority representation in the Council (see Final Rep of NY City Charter Revision Commn, Jan. 1989 — Nov. 1989 at 1 [1990] [hereinafter Revision Report]). The Board of Estimate was a body composed of the mayor, the city comptroller, the council president and the five borough presidents, and had been a part of city governance since at least the turn of the century (see 1897 City Charter § 226). By 1989 the Board of Estimate was responsible for the budget, land use, franchising and city agency contracting, giving it extensive power, particularly at the expense of the Council (Revision Report at 7). This was especially vexing for the City's substantial minority populations, which struggled to send representatives to the top positions that made up this powerful body (see id. at 8). In 1981, residents and voters in Brooklyn brought a lawsuit challenging the Board of Estimate as unconstitutional. They were ultimately successful in the United States Supreme Court, which struck down the charter provision constituting the Board of Estimate as a violation of the Fourteenth Amendment (see Board of Estimate of City of New York v Morris, 489 US 688, 690 [1989]).

Accordingly, the Charter Revision Commission focused its attention on whether to retain the Board of Estimate, and how to increase representation in city government. In the end, it recommended the dissolution of the Board of Estimate, an increase in Council districts from 35 to 51, and a reapportionment of the various powers the former body had once wielded (see generally Revision Report). Nowhere in this report, or in any of the amendments to the Charter approved by voter referendum in 1988, is there any reference to the Board or the Department. No doubt it is true, as petitioners and their supporting amici curiae assert, that the 1989 revisions wrought important changes in city governance. But in light of the Board's very clear history, it cannot be true that unrelated reforms to the Charter silently switched the Board's source of delegated powers from the state legislature to the Council.

In sum, review of the Board's history can lead to only one conclusion: its authority to regulate the public health in the City is delegated by the New York State Legislature, and its regulations have the force and effect of state law. The delegation granted by the state is and always has been very broad. Of course, nothing prevents the Council from passing public health legislation if it sees fit to do so. But in light of the Board's independent authority, delegated to it by the legislature, it is of no legal consequence that the Council has not affirmatively authorized Rule 81.53, or the regulation of sugary drinks in general.

[711] And until controversy erupted over the Rule, the Board's independent authority in the sphere of public health was well understood. For example, on December 5, 2006 the Board adopted a rule banning the use of all but tiny amounts of artificial trans fat in restaurant cooking in the City, effective January 10, 2007 (see NY City Health Code [24 RCNY] § 81.08). The Council some months later adopted a local law, effective July 1, 2007, amending the City's Administrative Code to add provisions consistent with the Board's trans fat rule (Administrative Code of City of NY § 17-192). In short, rule 81.08 was effective in January 2007, although the Council had not authorized the regulation of trans fats at the time.

The majority essentially argues that it cannot be true that the Board may act independently of the Council in the area of public health because, otherwise, what would happen if "the Board ... pass[ed] a health `law' that directly conflicted with a local law of the City Council"? (Majority op at 695.) The answer is simple: 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 Council's.^[5] While my colleagues in the majority may be troubled by this state of affairs, it is not their proper role to change it. The elected state legislature granted the Board the powers that it exercises. If the electorate of the City of New York desires to divest the Board of authority to act independently of the Council in matters of public health, the appropriate and democratic response is amendment of the City Charter.

III.

Boreali

Much of the debate in this case has focused on our decision in Boreali. This opinion is viewed as having an outsized impact on New York law, in no small part because it suggests that we are one of the few jurisdictions with a "strong" non-delegation doctrine, at least in the eyes of some commentators (see e.g. Borchers & Markell, New York State Administrative Procedure and Practice § 5.3 at 143-145 [2d ed 26 West's NY Prac Series 1998]; David Super, Against Flexibility, 96 Cornell L Rev 1375, 1387 n 32 [2011]; Gary Greco, Standards or Safeguards: A Survey of [712] the Delegation Doctrine in the States, 8 Admin LJ Am U 567, 581 [1994]). Several academic amici curiae have urged the Court to disavow Boreali, arguing that it puts a stranglehold on reasonable agency rulemaking. This should not be necessary, although it is important to understand Boreali properly, and to avoid applying its reasoning too rigidly.

First, the lower courts and the parties have approached the four "coalescing circumstances" that persuaded us in Boreali that the State Public Health Council had gone too far as though they are four prongs of a hard-and-fast test. They have marched through these four "Boreali factors," run the facts of this appeal through each one, checked "pass" or "fail," and tabulated the total. This is not what the decision mandates. While we referred to these four factors in some later cases (see Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 169-170 [1993]; Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, 346 [1991]), we have never treated them as requirements, and, indeed, we have generally not addressed them at all in separation-of-powers analyses (see e.g. Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 864 [2003]; Bourquin v Cuomo, 85 NY2d 781, 787 [1995]; Matter of Campagna v Shaffer, 73 NY2d 237, 243 [1989]). And in those cases where we have discussed the four Boreali factors, we have not hesitated to set aside certain of them as irrelevant in the context of the delegation then under review (see Rent Stabilization Assn., 83 NY2d at 170 [disregarding legislature's failure to act on a particular policy issue]; Health Facilities Assn., 77 NY2d at 348 n 2 [same]).

The proper approach in any separation-of-powers analysis is therefore flexible and case-specific, addressing each agency or executive action in light of the relevant legislative delegation it invokes (see Bourquin, 85 NY2d at 784-785; Clark v Cuomo, 66 NY2d 185, 189 [1985]; Matter of Levine v Whalen, 39 NY2d 510, 515 [1976]). Boreali represents a situation where a particular agency had taken a particular action that, in view of its particular delegation, "usurped the Legislature's prerogative" (Boreali, 71 NY2d at 11).

That is not the case here. The legislature has directed the Board to oversee and protect the public health of the City of New York by enacting rules in the Health Code. Those rules extend to all responsibilities within the competence of the Department, including "the preservation of human life," "the care, promotion and protection of health," the "control of [713] communicable and chronic diseases and conditions hazardous to life and health," and "supervis[ion] and regulat[ion of] the food and drug supply of the city and other businesses and activities affecting public health in the city [to] ensure that such businesses and activities are conducted in a manner consistent with the public interest" (City Charter § 556 [a] [1]; [c] [2], [9]). This delegation is no less specific than the one we approved in Matter of Levine v Whalen (39 NY2d 510 [1976]), which permitted agency action under a statute whose declaration of purpose stated that

"[i]n order to provide for the protection and promotion of the health of the inhabitants of the state, pursuant to section three of article seventeen of the constitution, the department of health shall have the central, comprehensive responsibility for the development and administration of the state's policy with respect to hospital and related services" (id. at 516).

Here, the Board identified a complicated threat to the health of city residents with many interrelated causes; i.e., obesity. As part of a wide-ranging effort to combat this threat, the Board focused on certain kinds of drinks sold in establishments over which the Department had sure jurisdiction. The Board considered several options for addressing the problem, and chose one after open public debate, calibrated to the severity of the threat and its most serious manifestations, and cognizant of the limits of its enforcement power and the feasibility of compliance. There can be little doubt that this was within the Board's statutory delegation.

Nor is there any legal problem with the method the Board has chosen to protect the health of city residents; i.e., a rule that seeks to influence consumer choices by making some choices marginally less convenient than others. The Appellate Division admonishes the Board for crafting this type of rule without an explicit directive to do so, and appears to conclude that the Board would have acted properly if only it had completely banned all sugary drinks within the City's borders. This is certainly not what Boreali commands, and neither is it good practice for administrative rulemaking. Safeguarding public health is a vast and complex responsibility, and any agency entrusted with this obligation must carefully consider what types of rules will best address its many disparate aspects.

[714] The Majority's Boreali Analysis

The majority's Boreali analysis raises two questions. First, having rejected the Board's argument that its authority and delegated powers are conferred by the state legislature, not the Council, why is Boreali even relevant? After all, the basis for the separation-of-powers approach enunciated in Boreali is article III, § 1 of the New York State Constitution, specifying that "[t]he legislative power of this state shall be vested in the senate and assembly" (Boreali, 71 NY2d at 9). Simply put, this constitutional provision, by its very terms, does not apply to local governments.

The majority cites Under 21, Catholic Home Bur. for Dependent Children v City of New York (65 NY2d 344 [1985]). In Under 21 — a case decided three years before Boreali — we held that Mayor Koch lacked authority to issue an executive order proscribing discrimination by city contractors on a ground not covered by any legislative enactment of the Council. But we recognized in Under 21 that "the pattern of government established for New York City by the City Charter is not identical to that of ... the State of New York" (id. at 356); and, as illustrated earlier, this is certainly true: the Board's powers are delegated by the state legislature, not its local legislative body, the Council. To my knowledge, before today we have never applied the Boreali separation-of-powers doctrine outside the context of state legislative delegations to state agencies under the state constitution. By extending Boreali to local governments by virtue of article IX, § 1 (a) of the constitution, the majority takes a big step without pausing to consider the consequences.

Second, the majority seemingly advocates a flexible approach to the four "coalescing circumstances" set out in Boreali (majority op at 696-697), in particular, acknowledging that "Boreali should not be interpreted to prohibit an agency from attempting to balance costs and benefits" (id. at 697-698). But then the majority instructs that a Boreali analysis should focus on distinguishing between policy ends and regulatory means, claiming that

"[b]y restricting portions, the Board necessarily chose between ends, including public health, the economic consequences associated with restricting profits by beverage companies and vendors, tax implications for small business owners, and personal [715] autonomy with respect to the choices of New York City residents concerning what they consume. Most obviously, the Portion Cap Rule embodied a compromise that attempted to promote a healthy diet without significantly affecting the beverage industry. This necessarily implied a relative valuing of health considerations and economic ends" (id. at 698 [emphasis added]).

I agree that this sort of balancing "necessarily implie[s] a relative valuing of" or making trade-offs between health and economic and other considerations and impacts. But then, that is how an agency carries out a cost-benefit analysis when deciding if and what sort of regulatory action to take. And what is inherently wrong with a regulation that seeks to "promote a healthy diet without significantly affecting the beverage industry"? Aren't regulatory agencies supposed to take into account and reduce insofar as practicable any deleterious side effects of their rules on affected entities?^[6]

There is no obvious reason why "economic consequences," "tax implications for small business owners" and "personal autonomy" are "ends." One could just as easily define the "ends" (as the Board did) to mean the protection of public health from risks associated with overconsumption of sugary drinks. Economic consequences, the effects on small business owners and personal autonomy are simply the kinds of factors the Board properly took into account when weighing the costs and benefits of different ways to achieve its public health "ends."

[716] In a similar vein, the majority goes on to add that

"[s]ignificantly, the Portion Cap Rule also evidenced a policy choice relating to the question of the extent to which government may legitimately influence citizens' decision-making. In deciding to use an indirect method — making it inconvenient, but not impossible, to purchase more than 16 fluid ounces of a sugary beverage while dining at a food service establishment — the [Board] rejected alternative approaches, ranging from instruction (i.e. health warnings on large containers or near vending machines) to outright prohibition. This preference for an indirect means of achieving compliance with goals of healthier intake of sugary beverages was itself a policy choice, relating to the degree of autonomy a government permits its citizens to exercise and the ways in which it might seek to modify their behavior indirectly" (id. at 698).

But why is an "indirect means" of achieving an end (healthier intake) a forbidden policy choice? Making the healthier choice the simpler choice is one way to reduce overconsumption of sugary drinks, a category of products that has repeatedly been linked to weight gain, obesity and a variety of diseases. And the Board chose this means over other possible approaches as a way to tailor its regulations so as to impose the least burden on society — i.e., as the result of run-of-the-mine cost-benefit analysis.

With all due respect to my colleagues, their proposed ends-means test is virtually inscrutable and surely unworkable. It harks back to long discredited formalistic approaches to administrative law, which were seemingly objective but instead served as camouflage for enforcement of judicial preferences. In this case, a majority of the Court just does not believe it to be a good idea for the Board to mandate the portion size of sugary drinks, apparently on the theory that the Council should be the sole arbiter of "the choices of New York City residents concerning what they consume" (majority op at 698), at least in those situations where the choices are not immediately life-threatening. I can appreciate this vison of the world as a philosophical matter, but I see no legal basis for it here.

Because the Portion Cap Rule does not suffer from any non-delegation or separation-of-powers infirmity, the proper standard [717] for our review is whether the regulation is "so lacking in reason for its promulgation that it is essentially arbitrary" (see Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004], quoting Matter of Bernstein v Toia, 43 NY2d 437, 448 [1977]). The Rule easily passes this test.

Following the submission of public comments on Rule 81.53, the Department responded to the many concerns raised with a 13-page memorandum explaining in detail why sugary drinks were targeted, and why some drinks and establishments were excluded. The memorandum cites peer-reviewed academic research and the findings of other public health bodies. The Board debated the issues presented and responses, and placed its deliberations in the public record of its meetings. Dr. Thomas Farley, the Commissioner of the Department and a certified pediatrician with 30 years of clinical and research experience, has submitted in the record of this case an affidavit explaining in great detail the reasons for creating the Rule and for giving it the particular form that it has taken. Fourteen public health and medical associations have supplied amicus curiae briefs to this Court with further citations and arguments supporting the Board's proffered explanations.

Petitioners and their supporting amici curiae, as well as Supreme Court, have countered the extensive documentation supporting the Board's reasoning with arguments that the Rule is rife with loopholes and will never achieve its goal of reducing obesity. But a rule is not irrational because there are reasons to disagree with or ways to improve it, or because it does not completely solve the targeted problem (see Matter of Unimax Corp. v Tax Appeals Trib. of State of N.Y., 79 NY2d 139, 144 [1992]). Given the exhaustive record in this case, it is clear that the Rule is not "lacking in reason for its promulgation." If it is ineffective, that will become clear enough in time, and the Board can correct course in light of new information. But this is no basis for the courts to strike the regulation down.

V.

What petitioners have truly asked the courts to do is to strike down an unpopular regulation, not an illegal one. Indeed, petitioners constantly stress just how unpopular the Portion Cap Rule is. But if that is so, eliminating, limiting, or preventing it via political processes should present little obstacle. [718] Importantly, that is the appropriate way for expressing disagreement and seeking redress. Boreali should not be an escape hatch for those who are unhappy with a regulation, and are unable or unwilling to address it with available means.

To sum up, if the People of the City or State of New York are uncomfortable with the expansive powers first bestowed by the New York State Legislature on the New York City Board of Health over 150 years ago, they have every right and ability to call on their elected representatives to effect change. This Court, however, does not. And there is no question that the Portion Cap Rule falls comfortably within the broad delegation granted to the Board by the legislature. The majority fails to advance any persuasive argument why the judiciary should step into the middle of a debate over public health policy and prohibit the Board from implementing a measure designed to reduce chronic health risks associated with sugary beverages just because the Council has not chosen to act in this area.

Order affirmed, with costs.

[1] We are aware that historically the City Council once shared legislative functions with the body known as the Board of Estimate, notwithstanding the language of the Charter (see generally Board of Estimate of City of New York v Morris, 489 US 688 [1989] [declaring the voting system of the Board of Estimate unconstitutional]). In November 1989, however, the voters of New York City approved changes to the Charter that eliminated the Board of Estimate, thus making the City Council "the sole legislative body of the City" (Frederick A. O. Schwarz, Jr. & Eric Lane, The Policy and Politics of Charter Making: The Story of New York City's 1989 Charter, 42 NYL Sch L Rev 723, 828 [1998]).

[2] It appears that the dissenting Judges do not disagree. Notably, the dissent, at the conclusion of a survey of legislative history and case law touching on the Board's powers, concludes not that the Board's authority is legislative, but that it is "at least `nearly legislative'" (dissenting op at 709; see also id. at 710 [referring to the Board's "authority to regulate" and its "regulations"]).

[3] Even assuming, for the sake of argument, that the Board's exemption of food service establishments subject to the Department of Agriculture and Markets was a matter of choice rather than necessity, the limited scope of the Portion Cap Rule would not in itself demonstrate that it amounted to policymaking.

[4] As a point of comparison, note the language empowering the Commissioner of Health in the City of Brooklyn's 1888 Charter: "Said health commissioner shall have power to act in a legislative capacity in regard to all matters pertaining to public health" (L 1888, ch 583, tit XII, § 2).

[5] The same would be true, of course, if a direct conflict existed between a local law in the area of public health and some action taken by the state legislature or the New York State Department of Health. Preemption is not a novel concept.

[6] Cost-benefit analysis has long been a staple of state and federal regulatory processes (see e.g. State Administrative Procedure Act § 202-a [1] ["In developing a rule, an agency shall, to the extent consistent with the objectives of applicable statutes, consider utilizing approaches which are designed to avoid undue deleterious economic effects or overly burdensome impacts of the rule upon persons" (emphasis added)]; Executive Order [Obama] No. 13563 of 2011 § 1 [b] [76 Fed Reg 3821 (2011)] [instructing agencies to "propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs," "tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives," and "select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits"]; Executive Order [Clinton] No. 12866 of 1993 § 1 [a], [b] [5] [58 Fed Reg 51735 (1993)] ["In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives," and "design... regulations in the most cost-effective manner to achieve the regulatory objective"]).