Big Brother Takes A Bite Out of The Big Apple and Gets A Worm Can Any Government Body Regulate Portions?

BIG BROTHER TAKES A BITE OUT OF THE BIG APPLE..., 55 S. Tex. L. Rev.
553
55 S. Tex. L. Rev. 553

South Texas Law Review
Spring, 2014
Comment
BIG BROTHER TAKES A BITE OUT OF THE BIG APPLE AND GETS
A WORM: CAN ANY GOVERNMENT BODY REGULATE PORTIONS?
Sara Jo Dunstan a1
Copyright (c) 2012 South Texas Law Review, Inc.; Sara Jo Dunstan
I. Introduction
II. Summary of the Soda Ban and How It Would Have Applied
III. Big Soda Fights Back
A. The Board of Health's Violation of the Separation-of-Powers Doctrine
1. Boreali Factor One: An Exception-Riddled Regulation
2. Boreali Factor Two: A Lack of Legislative Guidance
3. Boreali Factor Three: Public Debate and Legislative Failure
4. Boreali Factor Four: Expertise Required and Sufficiently Exercised
B. Soda Ban Was Arbitrary and Capricious, Lacked Rational Basis
IV. Analysis
A. Portion-Cap Laws Violate the Dormat Commerce Clause
1. Portion-Cap Laws Probably Nondiscriminatory
2. Interstate Commerce Burden Likely Exceeds Local Benefit
B. Withstanding Commerce Clause Attack, Portion-Cap Legislation Still Unconstitutional
C. The Solution: Defensive Restauranting, Facilitating Informed Choices, and Self-Regulation
V. Conclusion
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I. Introduction
Americans are big; they are bigger than people in any other high-income nation. 1 Thirty-three percent of American adults have
a body mass index of thirty or more, a number that indicates obesity. 2 One-third of American adolescents are overweight, 3
and it is estimated that eighty *554 percent of this group will grow up to become obese adults. 4 Generally, obesity is seen
as a purely private behavior. 5 Government meddling into private affairs is not a new occurrence, but it has not always been
successful. 6 Tobacco litigation opened the door to the public examining the costs of private behavior and shifted the political
focus to the regulation of private behavior--obesity, drug abuse, and the right to die-- because of its impact on others. 7
Obesity can lead to conditions such as type 2 diabetes, stroke, heart disease, and certain types of cancer. 8 Some scholars argue
that the cost of obesity does not affect the public, citing to research indicating that the obese statistically earn lower wages,
counterbalancing any insurance costs borne to others. 9 Also, quite morbidly, these scholars point out that the obese tend to die
sooner; therefore, the added costs of caring for the obese only appear higher because they accrue over a shorter period of time. 10
In addition, by dying sooner, the obese do not claim their fair share of Social Security benefits. 11 However, most commentators
find the cost of obesity a cause for concern for the public, as it is estimated that obesity-related health problems will account for
one in every six dollars spent on healthcare by 2030. 12 From an economic standpoint, both private citizens and public entities
would find some benefit in reducing American obesity rates and healthcare costs associated with the condition. 13
2016 Thomson Reuters. No claim to original U.S. Government Works.
BIG BROTHER TAKES A BITE OUT OF THE BIG APPLE..., 55 S. Tex. L. Rev. 553
The big question though is, what, if anything, should the government do about it? Although the U.S. Supreme Court has never
officially spoken on the issue, some justices have inferred that there is a fundamental right to eat. Justice Stephen Field once
wrote that a person's right to make and procure food is fundamental, and an essential element of liberty. 14 Similarly, Justice
William Douglas argued that the unenumerated *555 fundamental rights of the Ninth Amendment included one's taste for
food, finding it to be fundamental in our constitutional scheme--a scheme designed to keep government off the backs of
people. 15 More recently, Justice Antonin Scalia hinted at a right to eat in dicta. 16 Whether food choice is a fundamental right
or not, the growing rate of American obesity makes it apparent that people generally want the freedom to choose what they
consume, and how much, even if it is bad for them.
Assuming a right to eat exists, if the government attempts to regulate portions, a person's private interests must be weighed
against the public health and welfare. New York City Mayor Michael Bloomberg (Bloomberg or the Mayor) attempted such
a regulation when he pushed for the Soda Ban, an amendment to the New York City Health Code (the Code) that was later
approved by the New York Board of Health (BOH). 17 While Bloomberg's effort to curb obesity in his city was certainly noble
(and novel), the so-called soda industry used the power of the courts to strike down the Soda Ban. 18 Justice Tingling of the
New York Supreme Court found that the BOH exceeded its executive authority and intruded into the duties of the legislature,
creating a law in violation of the separation-of-powers doctrine. 19 Alternatively, Justice Tingling found that, even if the Mayor
and the BOH did not exceed their authority, the Soda Ban was arbitrary and capricious, and thus could not stand. 20
While the Mayor's attempt to cap the portion sizes of soda was ultimately defeated, the possibility remains that governmental
bodies will continue to make similar attempts to fight obesity through the regulation of foods with questionable nutritional value.
In 2011, the City of Cleveland, Ohio, passed a municipal ordinance banning foods containing industrially-produced trans fat
from being served in restaurants. 21 While the City successfully argued that a subsequently passed state law purporting to *556
preempt the ordinance violated the City's home rule and police powers, 22 no one has come forward to challenge the City's
authority to pass the substantive aspect of the ordinance. Prior to Cleveland, the cities of New York and Baltimore passed similar
trans-fat ordinances. 23 While these ordinances are not portion caps, and this Comment does not address whether authority
exists to pass them, this three-city trend of controlling public consumption through statutory bans of trans fat is arguably leading
governmental bodies down a slippery slope to regulating portions in the name of public health. For example, in an effort to
curb childhood obesity, San Francisco has banned toys in Happy Meals if the meal contains over six hundred calories, which
is essentially portion-cap legislation in disguise. 24
In an effort to nip this nanny-state trend in the bud, this Comment urges that no government body--local, state, or federal--has
the authority to enact a law that limits the portion sizes of food or drink in the United States. First, this Comment will explain
in detail the Mayor's proposed ban and how it would have applied. Second, it will summarize the arguments that were in favor
of and ultimately led to the court striking down the law. Third, this Comment will offer support for the proposition that state
legislatures similarly do not have the authority to enact a ban on portions under their police power. Fourth, this Comment will
address the unconstitutionality of a portion ban, should a court find that Congress or state legislatures have the authority to pass
such a law. Finally, it will offer alternative solutions to fight obesity in America.
II. Summary of the Soda Ban and How It Would Have Applied
On May 31, 2012, Mayor Bloomberg proposed to institute a Soda Ban preventing food service establishments from serving
sugary drinks in cups or containers exceeding sixteen ounces. 25 The Mayor asserted that New York City residents were
disproportionately obese and something needed to be done about it. 26 In fact, he said in an interview, I think that's what the
public wants the mayor to do. 27
*557 In September 2012, the BOH adopted the Mayor's proposed amendment to section 81 of the Code, which would have
taken effect on March 12, 2013. 28 Under the Soda Ban, food service establishments could not provide cups or containers over
sixteen ounces for sugary drinks. 29 Sugary drinks were defined as follows:
[A] carbonated or non-carbonated beverage that:
(A) is non-alcoholic;
(B) is sweetened by the manufacturer or establishment with sugar or another caloric sweetener;
(C) has greater than 25 calories per 8 fluid ounces of beverage; and
(D) does not contain more than 50 percent of milk or milk substitute by volume as an ingredient. 30
The BOH planned to assess a fine of up to two hundred dollars against any food service establishment found violating the
Soda Ban. 31
Under section 81.03(s) of the Code, a food service establishment is defined 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, and whether consumption
occurs on or off the premises or is provided from a pushcart, stand or vehicle. 32 At first glance, it appears as though this
definition would apply to every bar, movie theater, convenience store, grocery store, restaurant, newsstand, vending machine,
and food-service stand in the city. In its notice of the Soda Ban, the BOH claimed that [t]he Department enforces provisions
of the Health Code, the State Sanitary Code, Public Health Law and other applicable laws relating to food served directly
to consumers throughout New York City. 33 However, the BOH's enforcement jurisdiction is limited by a memorandum
of understanding with the New York State Department of Agriculture and Markets. 34 Under the memorandum, the BOH is
responsible for the inspection and regulation of places where food is consumed on the premises or sold ready-to-eat for offpremises consumption including the site at which individual portions *558 are provided. 35 The department of agriculture and
markets is responsible for the inspection and regulation of places where food is processed or manufactured, food warehouses,
wholesale food distributors[,] and retail food stores. 36 Where the jurisdiction of the departments overlap, the department of
agriculture shall have jurisdiction over all operations of the establishment unless sales of food for consumption on the premises
or ready-to-eat for off-premises consumption . . . exceeds fifty percent of total annual dollar receipts[,] 37 in which case the
BOH regulates the establishment. Only establishments that receive inspection grades from the BOH would have been subject
to the amendment. 38 Thus, the Soda Ban would have included movie theaters, over twenty thousand restaurants, stadiums,
arenas, coffee shops, bars, and food carts because they sell food for consumption on the premises or, in the case of food carts,
in a form that is ready-to-eat off premises. 39 The Soda Ban would not have applied to grocery stores because they are retail
food stores regulated by the department of agriculture, not the BOH. 40 Similarly, convenience stores would have been exempt
because they are considered food stores, which are subject to regulation by the department of agriculture, and their sales of
food typically do not exceed fifty percent of total annual dollar receipts. 41
III. Big Soda Fights Back

On October 11, 2012, the American Beverage Association, along with grocery, restaurant, and theater associations (collectively,
the petitioners) filed suit in the New York Supreme Court, New York County, against the New York City Department of Health
and Mental Hygiene, the New York Board of Health, and Dr. Thomas Farley in his official capacity as the *559 Commissioner
of the Department (collectively, the respondents). 42 The petitioners sought a permanent injunction and declaration, prohibiting
the respondents from enforcing the ban and declaring that the respondents had overstepped their authority. 43 Alternatively, the
petitioners sought a declaration that the New York City Charter (the Charter) provisions under which the respondents claimed
their authority to create the Soda Ban violated the separation-of-powers doctrine. 44 The petitioners also alleged that the Soda
Ban was arbitrary and capricious--so that even if the respondents had the authority to implement the law, it was an abuse of
discretion--and requested that the court enjoin its enforcement. 45 The petitioners asked the court to rule by December, citing
the need for a reasonable time for those in the beverage industry to re-tool facilities and equipment to comply with the Soda
Ban, should the court uphold it. 46 The court, however, waited until the eleventh hour to answer the petitioners' prayer. On
March 11, 2013, only one day before the Soda Ban would have taken effect, Justice Tingling of the New York Supreme Court
struck it down. 47
A. The Board of Health's Violation of the Separation-of-Powers Doctrine

Justice Tingling reviewed the Soda Ban under the Boreali factors, a set of factors that New York courts use to determine whether
an administrative body has overstepped its bounds and violated the separation-of-powers doctrine by trespassing on legislative
jurisdiction. 48 The four Boreali factors are whether the administrative agency (1) created a regulatory scheme fraught with
exceptions solely based on social and economic concerns; (2) wrote on a clean slate, creating an all-encompassing set of
rules without the aid of the legislature, instead of merely adding fine points to comprehensive legislation that described the
general policies it would implement; (3) implemented rules in an area of the law where, in the face of substantial public debate
and vigorous lobbying by a variety of interested factions, the legislative branch had failed to reach agreement; and (4) *560
lacked any technical or special expertise. 49 Any factor standing alone is not enough to declare that the separation-of-powers
doctrine has been breached. 50 Rather, when viewed in totality, the court considers whether the factors paint a portrait of an
agency that improperly assumed for itself open-ended discretion to choose its ends. 51 Justice Tingling concluded that the
BOH's attempt to enact the Soda Ban violated three of the four Boreali factors. 52
1. Boreali Factor One: An Exception-Riddled Regulation
The first Boreali factor looks at whether an administrative agency has constructed a regulatory scheme laden with exceptions
based solely upon economic and social concerns. 53 If so, the agency has violated the first Boreali factor, because [s]triking
the proper balance among health concerns, cost[,] and privacy interests . . . is a uniquely legislative function. 54 The petitioners
alleged that the Soda Ban exempted grocery stores, markets, and convenience stores on its face because of the Memorandum
of Understanding between the BOH and the Department of Agriculture and Markets. 55 As previously noted, the memorandum
gives the department of agriculture jurisdiction over these facilities. 56 The respondents argued that the Soda Ban was based
solely on health concerns, and that the only reason those establishments were exempt was because of the memorandum. 57
Justice Tingling decided that the memorandum required only that the respondents coordinate with the department of agriculture;
the memorandum did not independently limit the BOH's authority to regulate those establishments. 58 The court noted that
the respondents made no effort to coordinate with the department of agriculture before enacting the Soda Ban. 59 The court
concluded that this failure to coordinate on what is termed a chronic epidemic demonstrated that the respondents weighed
*561 their stated goal of health promotion against political considerations. 60 The court also found that the statement of the
financial costs related to the chronic epidemic in the Soda Ban's Statement of Basis and Purpose showed additional evidence
that the respondents were trying to strike a balance between economic considerations and looking after the public's health. 61
Therefore, Justice Tingling found that the respondents violated the first Boreali factor. 62
2. Boreali Factor Two: A Lack of Legislative Guidance
The second Boreali factor considers whether an agency created a regulation on a clean slate, or whether it merely fill[ed]
in the details of broad legislation describing the over-all policies to be implemented. 63 While administrative agencies do not
have inherent legislative power, they are constitutionally permitted to exercise their authority by promulgating rules within
the boundaries of [their] legislative delegation. 64
The Charter vests the BOH with limited legislative power in the city. 65 Under the Charter, the department of health shall
have power to adopt local laws which it deems appropriate . . . for the preservation of the public health, comfort, peace[,] and
prosperity of the city . . . . 66 It also allows the department to effectuate the purposes and provisions of [the C] harter or of
the other laws relating to the city. 67 The New York constitution does not prohibit the legislature from delegating its power
to an agency, so long as the legislature establishes reasonable safeguards and standards . . . to administer the law as enacted
by the [l]egislature. 68
The respondents argued that the Charter granted the BOH authority to regulate all health matters within the city under sections
556, 558, and 1043. 69 Section 556 allows the BOH to supervise the control of chronic disease. 70 It also authorizes the BOH
to supervise and regulate the food *562 and drug supply of the city and other businesses and activities affecting public health
in the city, and ensure that such businesses and activities are conducted in a manner consistent with the public interest and by
persons with good character, honesty[,] and integrity. 71 Section 1043 authorizes city agencies to adopt rules necessary to
carry out the powers and duties delegated to it by or pursuant to federal, state[,] or local law. 72 New York's highest court
has stated that the BOH's authority under its enabling statute must be deemed limited by its role as an administrative, rather
than a legislative, body. 73
After extensively examining the history of the Charter and all of its amendments from 1698 to the present, Justice Tingling
found that the Charter did not grant the BOH the vast and unchecked authority required to create, mandate, and enforce the
Soda Ban. 74 The court explained that while the Charter granted the BOH broad powers, every major amendment to the
Charter that increased the BOH's authority occurred under times of increased diseases. 75 The amendment history of the
Charter reveals that the legislature's intent was to allow the BOH to provide regulations for the protection of the city's citizens
from communicable, infectious, and pestilent diseases. 76 The court concluded that although the BOH had authority to
regulate-- in a supervisory role--the city's food supply when it concerned the public health, the history of the Charter elucidated
precisely under what circumstance the BOH could take this step: [W]hen the City is facing eminent danger due to disease. 77
Accordingly, the court found that the BOH violated the second Boreali factor. 78
3. Boreali Factor Three: Public Debate and Legislative Failure
The third Boreali factor considers whether the legislature has tried and failed to reach agreement in the face of substantial public
debate and vigorous lobbying by a variety of interested factions. 79 An agency cannot intercede[] to perform a legislative
function [that] the . . . [l] egislature *563 could not, or would not, perform. 80 A court will attach more persuasive weight to
legislative failure than it will legislative inaction when examining this factor. 81
Undeniably, the legislative branch of New York has tried and failed to come to an agreement in this area. In 2011, the city
council introduced a resolution asking the United States Department of Agriculture to authorize the city to add sugary drinks
to the list of goods that cannot be purchased with food stamps. 82 In 2012, the city council introduced two more resolutions
regarding sugary drinks. 83 The first resolution requested that the Food and Drug Administration (FDA) require warning labels
on sugar-sweetened drinks, while the second urged the New York State Legislature to enact a law that would add an excise
tax on sugary drinks. 84
In 2010, a bill was introduced to the New York State Assembly that would have prohibited the use of food stamps to buy food
that is not nutritional. 85 The following year, a bill was introduced that would have authorized additional taxes on sweets
and snacks, including soda. 86 In 2012, another bill was introduced that would have prohibited stores from displaying candy
or soda at the checkout counter. 87 Again in 2012, a bill was introduced that would have banned food service establishments
residing on government property from selling sugary drinks, and also would *564 have eliminated vending machines from
government property. 88 None of these resolutions or bills passed. 89
The respondents tried to distinguish the Soda Ban by arguing that the aforementioned legislatures never considered a bill on
capping portion sizes and, therefore, there was no evidence of legislative failure for the court to consider. 90 Justice Tingling
reasoned that the [f]ailure to think, or list or consider, any and all possibilities, would justify the usurpation by an administrative
agency of a legislatively mandated function. 91 The court found the respondents' argument irrational, and decided that [a]
ddressing the obesity issue as it relates to sugar-sweetened drinks . . . is the subject of past and ongoing debate within the [c]ity
and [s]tate legislatures. 92 Therefore, the court found that the respondents violated the third Boreali factor. 93
4. Boreali Factor Four: Expertise Required and Sufficiently Exercised
The final Boreali factor determines whether an agency required expertise or technical competence to enact a regulation, and, if
so, whether it exercised such expertise or technical competence in developing the regulation. 94 This factor is not articulated as
clearly as the others. New York's highest court once explained [t]he judicial function is exhausted with the discovery that the
relation between means and end is not wholly vain and fanciful, an illusory pretense. 95 Justice Tingling said that an agency
could demonstrate the development requirement by the exercise of the requisite expertise in a field prior to the passage of a
regulation, and that, upon a challenge to a regulation, be able to cite where and how same was exercised. 96 The respondents
claimed that the memorandum the BOH published after a public hearing on the Soda Ban evidenced the BOH's exercise of
its expertise. 97 The court found this argument to have some *565 merit. 98 The parties did not dispute that the Mayor's
office wrote and proposed the Soda Ban to the BOH or that the BOH enacted it without any substantive changes. 99 The
respondents could not point to any board member who exercised any expertise or competence regarding the rule. 100 However,
Justice Tingling concluded that the BOH's acceptance of the Soda Ban as written spoke only to the BOH's agreement with
the language of the regulation, not its failure to exercise its expertise or technical competence. 101 Therefore, the court found
that the respondents satisfied the fourth Boreali factor. 102
After examining all of the Boreali factors, Justice Tingling decided that the BOH violated the separation-of-powers doctrine. 103
The court reasoned that if it upheld the Soda Ban, it would create an administrative Leviathan and would eviscerate the
separation-of-powers doctrine. 104 Such an evisceration, the court summarized, has the potential to be more troubling than
sugar sweetened beverages. 105
B. Soda Ban Was Arbitrary and Capricious, Lacked Rational Basis

Even if the court had found that the BOH's approval of the amendment was within its power, the amendment itself was fatally
flawed. Under New York law, an administrative regulation will be upheld only if it has a rational basis, and is not unreasonable,
arbitrary[,] or capricious. 106 The arbitrary-or-capricious test looks at whether a particular action should have been taken . . .
and whether the administrative action is without foundation in fact. 107 Further, when a regulation offers no rational reason for
a distinction in treatment between two similar groups, New York courts find that the regulation is arbitrary and capricious. 108
*566 As explained in Part II, the groups that would have been affected by this ban were primarily movie theaters, arenas,
and restaurants. Grocery stores, convenience stores, and newsstands could have continued to sell sugary drinks over sixteen
ounces. As the Soda Ban was written, a person could have been denied a large cup of coffee in a Dunkin' Donuts because
Dunkin' Donuts employees add the sugar for the customer. 109 However, that same person could have gone to the 7-Eleven next
door and purchased a Double Big Gulp, with three times the amount of sugar and calories, because the BOH lacks jurisdiction
over it. Similarly, a person could have ordered a 16.2 ounce M & M McFlurry at McDonald's, with a whopping 930 calories,
because the Soda Ban exempted items containing more than fifty percent milk. 110 Meanwhile, that same person could not
have ordered a medium (21 ounces) Sprite containing 200 calories. 111 Further, a person could not have ordered a black coffee
with extra sugar at Starbucks, but could have ordered a plain black coffee and immediately added all the sugar he wanted, three
feet away, at the self-service station.
Under New York law, a court must look only to the reasons cited by an agency as its support for a regulation to determine
whether the regulation is arbitrary and capricious. 112 In its amendment notice, the BOH cited several reasons to regulate soda
sizes. 113 For example, it asserted that offering soda in smaller sizes would get the public accustomed to smaller portions and,
thus, would better enable them to understand proper portions and portion control. 114 However, because the Soda Ban was so
rife with contradictions and inconsistencies, it could not possibly have achieved its goals.
Justice Tingling came to this same conclusion in his order enjoining the respondents from enforcing the Soda Ban. 115 The court
explained that an agency must first demonstrate that it has a reasonable basis for creating a regulation. 116 The court accepted
the respondents' stated premise for enacting the Soda Ban-- to address the rising obesity rate in New York *567 City-and found it to be reasonable. 117 The court afforded the respondents every degree of judicial deference in promulgating the
Rule, but found that it was nevertheless fraught with arbitrary and capricious consequences. 118 Justice Tingling reasoned
that the Soda Ban was arbitrary and capricious because it only affected some food establishments as opposed to of all of them;
it exempted beverages with substantially higher calories and more sugar than soda on suspect grounds; and the loopholes
inherent in the Rule, including but not limited to no limitations on re-fills, defeat[ed] and/or serve[d] to gut the purpose of
the Rule. 119 Accordingly, Justice Tingling declared the Soda Ban invalid and permanently enjoined the respondents from
enforcing it. 120 When the respondents appealed, the New York Supreme Court and the Court of Appeals both affirmed Justice
Tingling's judgment. 121 Jon Stewart of The Daily Show was spot-on when he opined that the Soda Ban combine[d] the
draconian government overreach people love with the probable lack of results they expect. 122
IV. Analysis
This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the
economy, . . . has as its corollary that the states are not separable economic units. 123 Clearly, as Justice Tingling concluded,
a local regulatory agency as part of the executive branch does not have the authority to put into effect such a cap on portion
sizes. This Comment argues that state and federal legislative bodies also lack the power to do so.
A. Portion-Cap Laws Violate the Dormant Commerce Clause

States legislatures cannot enact a portion cap because it would violate the dormant Commerce Clause, treading on an area of
law reserved for Congress. The Commerce Clause grants Congress the power [t]o regulate Commerce with foreign Nations,
and among the several States, and with the *568 Indian Tribes. 124 The Tenth Amendment guarantees, The powers not
delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people. 125 The dormant Commerce Clause is a judicial interpretation of the dormant or implicit aspect of the Commerce
Clause and limits a state's power to enact legislation, even in areas where Congress is silent. 126
When analyzing whether a state has enacted a law violative of the dormant Commerce Clause, courts first determine whether the
law discriminates against interstate commerce. 127 Laws that discriminate against interstate commerce are per se invalid. 128
If a court determines that a law is not discriminatory, it uses a balancing approach first introduced in Pike v. Bruce Church,
Inc. 129 Under the Pike test, a nondiscriminatory state law that only incidentally affects interstate commerce will be held valid
unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits derived from the
law. 130 The line between a per se invalid discriminatory law and one subject to the Pike balancing approach is not clear. 131
Regardless of the situation, the global effect on both local and interstate commerce is the primary consideration. 132
Although the dormant Commerce Clause ordinarily applies to laws that burden economic interests, courts have applied it to laws
where the sole purpose is to protect public health and safety. 133 This Comment adopts the position that a state-enacted portioncap law would violate the dormant Commerce Clause because, even if a state wrote a portion-cap law that is not discriminatory,
it would lack local benefit entirely. Thus, any burden on interstate commerce would be clearly excessive.
*569 1. Portion-Cap Laws Probably Nondiscriminatory
Generally, a court will invalidate a state statute that regulates or discriminates against interstate commerce directly, or one that
does so indirectly through favoring that state's economic interests over out-of-state-interests. 134 Where the court finds that a
statute discriminates, it must be invalidated unless the proponents of it can demonstrate that reasonable and nondiscriminatory
alternatives would fail to advance a legitimate local purpose adequately. 135 A statute may discriminate in one of two ways:
on its face or in its effect. 136 A statute is facially neutral when there is no explicit distinction between intrastate commerce
and interstate commerce. 137 A differential burden on interstate commerce-- from wholesaler to retailer to consumer--will
be held invalid because a burden placed at any point will result in a disadvantage to the out-of-state producer. 138
A court would likely find a state portion-cap statute facially neutral unless the cap only applies to a specific product made
outside the state while exempting the same product made within the state. 139 This is unlikely to occur because the purpose of
such a statute would fail before one could finish reading it. For instance, if the purpose of a portion cap is to reduce the rise of
obesity in a state, the statute would not serve that purpose where it capped portion sizes on national chains, such as 7-Eleven
and McDonald's, but exempted in-state chains or mom-and-pop stores.
However, courts will still find a facially neutral statute discriminatory where it discriminates against interstate commerce in its
effect. 140 Where a statute discriminates in its effect, the burden falls on the State to justify [the discrimination] both in terms of
the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to *570 preserve
the local interests at stake. 141 A portion-cap statute could be found discriminatory in its effect, depending on the subject matter
of the portion cap. However, the only hypothetical this author could think of is solely that--a hypothetical. For the hypothetical
to work, one must suspend reality and imagine that Dublin, Texas is the sole place of manufacture of Dr Pepper. One must also
imagine that Dr Pepper has a patent on aspartame. In this hypothetical, the Texas legislature adopts a portion cap on all soft
drinks in an effort to curb obesity and promote the health and welfare of its citizens. Exempted from this portion cap are all
drinks in which sugar is substituted with aspartame (i.e., Diet Dr Pepper). This law is not discriminatory on its face because
it does not explicitly exempt in-state businesses to the disadvantage of out-of-state businesses. Further, the exemption does
not serve to defeat the purpose of the statute because aspartame is a low-calorie substitute for sugar. 142 However, the statute
would be discriminatory in its effect because the in-state business could sell a higher volume of its product without competition
from other businesses, and nondiscriminatory alternatives would seem likely to fulfill the State's purported legitimate local
purpose more effectively. 143
As illustrated, a state legislature would probably not enact a facially discriminatory portion-cap law because it would fail of
its essential purpose to promote health and welfare. It is also unlikely that a legislature could pass a portion-cap law that
discriminates against out-of-state residents while benefitting those residing in-state, as evidenced by the above hypothetical
loaded with fanciful, unlikely exceptions. In addition, a regulation is more likely to be characterized as a discrimination of
some kind if it is discriminatory in purpose or on the face than if it is solely in effect[[,] 144 which further weakens an already
weak argument. Fortunately, all is not lost.
2. Interstate Commerce Burden Likely Exceeds Local Benefit
It must be conceded, as it just was, that a discriminatory portion-cap law is difficult to postulate. Therefore, it is necessary
to examine portion-cap laws under the Pike balancing approach, 145 which offers the strongest *571 and most compelling
argument against state control in the area of portion regulation.
In conferring upon Congress the regulation of commerce, [the Commerce Clause] was never intended to cut the States off from
legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect
the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without
constituting a regulation of it, within the meaning of the Constitution. 146
The purpose of a portion-cap law would undoubtedly relate to the state's police power, which enables it to legislate on subjects
regarding the health of its citizens; otherwise, a court would likely hold that it is an attempt to regulate commerce, which the
Constitution reserves to Congress. For this reason, this Comment assumes that a state's purpose in enacting a portion cap would
be to curb obesity in the state, thereby legislating to promote the health of its citizens. Absent this purpose, a state portion-cap
law would be a prohibited attempt to regulate commerce, requiring no further inquiry.
However, a portion-cap law would almost always affect interstate commerce indirectly, regardless of its purpose. For example,
major-brand soda manufacturers do not have operations in every state. 147 The bottle manufacturers in a non-portion-capped
state are affected by a portion-cap law in another state, and must comply with the cap in order to sell its product there. This
is an indirect effect on interstate commerce derived from the portion-cap law. Under the Pike balancing test, when a state
law regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local
benefits. 148 While promoting public health and safety is a legitimate purpose, it does not necessarily protect a state law from
Commerce Clause attack. 149
The state's interest in enacting a portion cap would be legitimate. However, the burden on interstate commerce would exceed
the local benefit. Capping portions would just lead people to buy additional quantities of the portion-capped item, which does
nothing to promote public health or prevent obesity. In essence, the local benefit would be completely *572 lost. There would
be no benefit at all. Surely, even the slightest damper on interstate commerce mandates a finding that the burden on interstate
commerce clearly exceeds the local benefit where the benefit is nonexistent.
Even if a court were to find some benefit to a portion cap, the cause of obesity is clearly not one particular item of food or
drink, nor is the cause diet alone. The burden on interstate commerce would still exceed the putative local benefit of a portioncap law because of the disadvantage it would place on the companies supplying items that are subject to the cap compared to
those companies that do not. Taking the Soda Ban as an example, had the legislature passed the law, as opposed to the BOH, it
would have put soda manufacturers at a significant disadvantage compared to manufacturers of, for example, chocolate milk.
Eight ounces of chocolate milk contain approximately two hundred twenty-six calories. 150 Eight ounces of Coca-Cola contain
only ninety-seven calories. 151 While chocolate milk admittedly contains some nutritional value, the distinction between these
two items is completely arbitrary when the goal of the legislation is to fight obesity. The law would indirectly affect interstate
commerce because it would place Coca-Cola at a disadvantage by forcing the company to sell its product in limited volume.
While the makers of chocolate milk could sell its product by the gallon in a movie theater, a person could only purchase Coke
in a small bottle or cup.
The most compelling argument against states regulating portions sizes is that the regulation would directly affect interstate
commerce. [A] state may not impose a burden which materially affects interstate commerce in an area where uniformity of
regulation is necessary. 152 If an individual state is permitted to regulate the portion sizes of packaged goods, it could create
a result similar to that reached in the case Brown-Forman Distillers Corp. v. New York State Liquor Authority. In BrownForman, the State of New York required that companies selling liquor to wholesalers in the state do so at a price not higher than
the price such companies charged in other states. 153 In passing this legislation, the state, in effect, regulated the out-of-state
sales of liquor by forcing the out-of-state companies to comply with this law; the companies had to ask permission from New
York before it charged a lower price to wholesalers in another state. 154 The U.S. Supreme Court found that the law violated the
dormant Commerce Clause because *573 [f]orcing a merchant to seek regulatory approval in one State before undertaking
a transaction in another directly regulates interstate commerce. 155
If the law allows states to pass regulations on portion sizes of any food or drink, it will create the same result. States regulating
sizes will force food companies to manufacture the lowest-allowable portion of its product, mandated by the state with the
lowest cap. States creating portion-cap laws multipl[y] the likelihood that a seller will be subjected to inconsistent obligations
in different States. 156 It is obvious that beverage companies will have to change the size of their bottles in order to comply
with a portion size limitation. This applies to any portion ban on foods controlled by states. Each state may come up with a
different size for its maximum allowable portion. This directly affects interstate commerce because, like in Brown-Forman,
where the New York State Liquor Authority made distillers charge the lowest price out of all the states, the state with the lowest
portion size will be controlling the portion sizes in other states in one of two ways. First, the state with the lowest allowable size
will force other states to pass regulations at or under that size in order for their own laws to have any effect on food packaging.
Essentially, these other states would be forced to abandon regulatory goals because any portion cap higher than that of the
state with the lowest cap would be rendered meaningless. Meanwhile, a citizen of one of these states would only have the
opportunity to purchase portions lower than that which his state felt was necessary to fight obesity. 157 Second, the food or
beverage industry affected by multiple portion-cap laws in several states will comply with the state with the lowest cap for
all of its sales to avoid inconsistent obligations, because it would not be cost-effective for the industry to re-tool machinery
to make fifty different package sizes.
Some may claim that when interstate commerce analysis is conducted, the direct-effect argument only applies where there
is an economic impact on other states. Indeed, the regulation in Brown-Forman impacted commerce in other states because
of New York's pricing restrictions, not a regulation on packaging. But this argument fails when one returns to the purpose
of a portion-cap law. The Supreme Court has stated that where there is an absence of congressional action to set uniform
standards, some burdens associated with state safety regulations must be tolerated. 158 Since *574 safety and health are both
within a state's police power, 159 it is likely the Court would say the same thing about state health regulations. But where the
state's safety interest has been found to be illusory . . . the state law cannot be harmonized with the Commerce Clause. 160
Arbitrary and illusory are not necessarily the same thing. However, regulations designed to promote public health or safety
may nevertheless . . . further the purpose so marginally, and interfere with commerce so substantially, as to be invalid under
the Commerce Clause. 161 The necessary goal of a portion-cap law, in order for a state to pass one under its police power, is
to promote public health and to fight obesity. Capping portions on a particular item, while not restricting multiple sales of that
item or failing to place caps on other non-nutritional items, furthers the purpose of promoting public health only marginally at
10
best. As illustrated, the same law would interfere with sales of the item in other locales substantially. Thus, any state legislation
creating a portion cap violates the dormant Commerce Clause because the burden imposed on commerce would be clearly
excessive in relation to the putative local benefits. 162
B. Withstanding Commerce Clause Attack, Portion-Cap Legislation Still Unconstitutional

Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation
to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions,
Congress cannot be denied the power to exercise that control. 163 The purpose of Commerce Clause examinations of state
laws is to determine whether a state has overstepped its bounds into Congress' territory. By arguing that a state has overstepped
its authority by enacting a portion-cap law, one necessarily implies that Congress holds the power to pass such a regulation
under the Commerce Clause. However, Congress' commerce power is naturally limited to the extent that it can pass a law under
the Commerce Clause only if the law does not violate any other constitutional right. Furthermore, even if a court were to find
portion-cap legislation to be a valid exercise of a state's police *575 power, no governmental body can violate the Constitution
when exercising its powers.
There exists no direct constitutional law, statutory enactments, case law, or any other authority that stands for the proposition
that there exists a fundamental right to consume food in whatever quantity or portion one wishes. This author surmises this to
be the case because the proposition is blatantly obvious, an extremely novel concept, or both. 164 However, some persuasive
case law does exist indicating that a portion cap would violate the constitutional rights of the businesses selling food.
Three states--Oregon, California, and Michigan--have had companies assert constitutional grounds to challenge food-packaging
requirements that can be analogized successfully to portion-cap legislation. In Oregon, bottle and can manufacturers and
distributors in the soft drink industry (collectively, the plaintiffs) sued the state of Oregon to enjoin enforcement of the Bottle
Bill. 165 The Bottle Bill banned the sale of pull-top cans in which the pull-top wholly separated from the can; it also mandated
that retailers and distributors accept returnable bottles from consumers. 166 The legislative purpose of the Bottle Bill was to
reduce litter in Oregon and to prevent injuries to people and animals resulting from discarded pull-top tabs. 167 The plaintiffs
challenged the statute under the Commerce Clause and the Equal Protection and Due Process clauses of the Fourteenth
Amendment. 168 The plaintiffs argued that the Bottle Bill would have severe economic effects upon their elements of the
beverage industry. 169
The court found the Bottle Bill to be a valid exercise of the state's police power. 170 The court then quickly dismissed the
plaintiffs' due-process challenge, explaining that [t]he United States Supreme Court has not struck down economic legislation
on the basis of substantive due *576 process since the Depression. 171 The court also found for the defendants on the plaintiffs'
equal-protection argument. 172 It decided that the plaintiffs' equal-protection rights are subject to rational-basis scrutiny and
that the pull-top ban was reasonably calculated to reduce litter, minimize injury to people who might step on the pull tops, and
reduce the chance that animals would eat the pull tops. 173 Since the Bottle Bill placed a monetary value on bottles, the court
further reasoned that it encouraged people to return the bottles to a store; thus, the Bottle Bill was reasonably calculated to
diminish the amount of solid waste and the amount of litter with which the state is required to deal. 174
Although the Oregon plaintiffs lost their case on all counts, the case is distinguishable from the portion-cap legislation attempted
in New York City. In particular, portion-cap legislation on soft drinks, for the purpose of curbing obesity, is a violation of the
Equal Protection Clause. The Fourteenth Amendment does not forbid states to create laws that affect different groups of citizens
differently; rather, it gives states an immense scope of discretion to do so. 175 The constitutional safeguard is offended only
if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. 176 The proposition that
11
making bottles returnable will create less litter is rational. The deposit a consumer receives for returning bottles offers him an
incentive to avoid littering. If he does litter, that incentive passes to any citizen in need of money, who can collect the littered
bottles for profit. This was a stated purpose of the Oregon statute. 177 Further, the Oregon legislature banned all pull-top cans,
regardless of their contents, which rationally relates to preventing injury resulting from discarded pull-tops. 178
In contrast, two sixteen-ounce bottles of soda do not curb obesity any more than one thirty-two-ounce container. Additionally,
when a legislature bans a twenty-ounce bottle of Sprite, but it exempts a twenty-ounce Frappuccino because the Frappuccino
contains more than fifty percent milk--yet contains far more calories--it creates a classification that rests on grounds wholly
irrelevant to the achievement of the State's objective. 179 Finally, when a portion-cap law exempts certain retailers, like grocery
*577 stores, and does not account for free refills in restaurants, the law creates wholly arbitrary classifications that directly
undermine the state's purpose of fighting obesity. The only way for portion-cap legislation to achieve its goals is to institute
food rationing, a practice the United States has not instituted since World War II. 180
California faced a case with essentially identical facts and legal arguments as those in Oregon. 181 The California plaintiffs
argued that their equal protections rights were violated because the returnable bottle legislation applie[d] only to soft drink
and malt beverage containers but not to the containers of other beverages or food. 182 The court dismissed this argument and
explained that [i]t is no requirement of equal-protection that all evils of the same genus be eradicated or none at all. 183 While
some may surmise that this offers a valid counterargument to this author's above equal-protection analysis, the California court
also explained that those challenging the legislative judgment must convince the court that the legislative facts on which the
classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker. 184 The
court found that the plaintiffs failed this burden and stated, Certainly, some of the returned nonrefillables would otherwise
become litter. Thus, the effect of the ordinance should be to reduce litter. 185
The distinguishing characteristic between the California case and a portion-cap law is that no governmental decisionmaker could
reasonably maintain that a twenty-ounce soft drink purchased in an exempt grocery store somehow contains fewer calories than
one purchased at a movie theater, or that two ten-ounce sodas contain fewer calories than one twenty-ounce soda. Further, a
legislature could not possibly assert that a drink with twice the calories of soda but containing fifty percent milk would cause
someone to pack on fewer pounds. These classifications make absolutely no sense in relation to a portion cap's ultimate goal;
the ordinance would not reduce obesity. Thus, the classifications would violate the equal-protection rights of the businesses
subject to the cap.
Portion-cap legislation also violates the constitutional right to do business secured under the Due Process Clause. In Michigan,
a statute banned the sale of milk in containers greater than one-half gallon, while *578 another statute allowed milk to
be packaged in containers greater than three gallons. 186 Grocers Dairy sued the Director of the Michigan Department of
Agriculture. 187 The issue in the case was whether the absolute prohibition of the sale of milk in one-gallon containers [was]
contrary to the constitutional guarantees of due process of law under the . . . Federal Constitution[]. 188 The legislature's
concern was that housewives might want to transfer the milk from gallon containers into smaller, easier-to-manage receptacles,
thereby increasing the risk of milk contamination; in essence, the purpose of the ban on gallon containers was to protect
the public health. 189 Another section of the statute, however, permitted the sale of milk in containers of three gallons or
more. 190 The court explained that while engaging in business is a constitutional right, it is nonetheless subject to a state's
police power, under which a state is authorized to prevent fraud and protect public health and general welfare. 191 However,
the court continued, when a state exercises its police power, there must be not only a public welfare to be conserved or public
wrong to be corrected, but there must be also a reasonable relation between the remedy adopted and the public purpose. 192
The court quickly concluded that the regulation, as applied to Grocers Dairy, was unreasonable and capricious and le[]d to the
inevitable conclusion that there is no reasonable relationship between the public purpose and the remedy adopted. 193 Finding
12
it capricious, the court decided that the statute prohibiting milk sold in gallon containers could not survive under the Fourteenth
Amendment's Due Process Clause because it violated the constitutional right to do business. 194
It is likely that a court considering a portion-cap law similar to the one in New York City would also conclude that the law
violated the Due Process Clause because of its arbitrary and capricious nature. Dairy Grocers successfully argued that the gallon
ban statute was arbitrary and capricious because its stated purpose was to prevent milk contamination through transferring the
milk from one container to another. 195 However, the same statute allowed milk sales in containers over three gallons, which
meant that *579 it failed of its essential purpose. 196 Certainly, if a housewife desired to transfer one gallon of milk into
smaller containers, she would have desired to do the same with a three-gallon container. Therefore, the remedy adopted did
not bear a reasonable relationship to the statute's stated purpose. Similarly, the New York City law capped portions at sixteen
ounces for the purpose of curtailing rising obesity rates, yet it did not apply to everyone, nor did it prevent people from buying a
quantity of soda in two separate containers equal to the amount the portion cap prohibited in one container. Therefore, a portioncap statute like the Soda Ban enacted by any legislative body would probably not survive a due-process analysis.
C. The Solution: Defensive Restauranting, Facilitating Informed Choices, and Self-Regulation

Aside from constitutional concerns, the overwhelming problem with allowing a legislative body to enact a portion ban, simply
stated, is the following: If the ban leads to a decrease in obesity, more items will be legislatively capped, with the excuse that
the initial ban resulted in statistically proven weight loss. If the ban does not work, more items will still be legislatively capped,
with the excuse that the initial portion caps were not enough to fix the obesity problem. In either case, if the courts decide to
uphold portion-cap legislation, legislatures will have case law to back up their authority to ration food in the name of public
health. Bart Simpson, among others, once proclaimed, You're damned if you do, and you're damned if you don't. 197 Truer
words were never spoken--from an imaginary ten-year old, no less.
Obviously, obesity does not disappear just because the government can tell citizens how much they are allowed to eat. So what is
the solution to the rising obesity problem in America? This Comment supports the notion that food companies and individuals are
responding to the obesity problem on their own, without the need for government intervention. Further, companies are making
nutritional information more readily available, so that the people themselves may make more informed choices about what
they eat or drink. As the Soda Ban amendment notice pointed out, When people are given larger portions they unknowingly
consume more. 198
A practice nicknamed defensive restauranting 199 has begun to develop among fast food chains in recent years, where
companies offer low- *580 fat and healthy alternatives on their menus. For instance, McDonald's now offers bottled water,
a variety of salads, and smoothies, as well as oatmeal for breakfast. 200 Taco Bell created a Fresco Menu comprised of six
items under 350 calories and with fewer than ten grams of fat. 201 At Wendy's, one can substitute french fries in a combo
meal for chili, a salad, a baked potato, or apple slices. 202 Not only is calorie information readily available on these restaurants'
websites, but McDonald's has also added calorie information to its drive-thru and dine-in menu boards. 203 With these fast-food
giants voluntarily taking initiative, it will not be long before other companies follow suit. Additionally, both PepsiCo and CocaCola have decided to offer more low-calorie drinks in their vending machines to encourage low-calorie purchases. 204 One
initiative that will soon take effect in select cities is that calorie counts will be posted on the buttons of each vending machine
selection. 205 Further, Coca-Cola has started running advertisements that address the obesity problem. 206
Others in the food industry have also joined the ranks of fast-food and beverage companies that are addressing obesity. Kraft
announced that it would eliminate marketing in schools, 207 and Frito-Lay eliminated trans-fats from its snack foods. 208
American schools saw a twenty-four percent decline in the purchase of non-diet drinks from 2002-2004. 209 Since children
13
replaced these beverages with sugary sports drinks and fruit drinks, 210 it is not clear whether the decline in non-diet drinks
resulted in any weight loss; however, it is evident that providing information to the public has resulted in a change in private
behavior. These companies' practices of providing the information necessary for a person to make *581 informed choices puts
the individual's health in his own hands and eliminates any need for the government to step in and mandate what is acceptable
for him.
V. Conclusion
When this author first heard of the New York City Soda Ban, it brought up the image of Winston Smith from the book 1984,
with his frail and wretched body, straining to touch his toes as the lady on his telescreen assured him he could do better (as if
he had a choice but to do so), all while under Big Brother's watchful eye. 211 The United States is founded on freedom. Part
of freedom is choice. 212 No government entity has the power to put a cap on what a person may eat or drink. Administrative
agencies cannot pass a portion-cap law because it violates the separation-of-powers doctrine. The states cannot do so because it
violates the dormant Commerce Clause, nor could Congress, or any other legislative body, for it would violate the constitutional
guarantees of due process or equal protection.
Provided a governmental body is able to overcome these legal arguments, the implications are grim. Both positive and negative
effects of a portion-cap law on an initial product would support the argument that in order to correct the obesity problem, the
government must cap the portion sizes of even more products. Frighteningly, a court's sanction of this government practice, to
any extent, would theoretically give the government unlimited power to control how much the public is allowed to consume.
The solution to curb obesity in American society is to encourage companies to educate the public about what they are eating and
drinking so that they can make informed choices and to demand that establishments have healthier choices available. Knowledge
is strength in the face of government protection--not ignorance. 213 Power is not a means; it is an end. 214 The power to make
decisions about what one consumes should remain with the individual, not passed to the government.
Footnotes
1
Jay Bhattacharya & Neeraj Sood, Who Pays for Obesity?, 25 J. Econ. Persp., Winter 2011, at 139, 140.
2
Katherine M. Flegal et al., Prevalence and Trends in Obesity Among US Adults, 1999-2000, 288 JAMA 1723, 1723-27 (2002).
Rogan Kersh & James A. Morone, Obesity, Courts, and the New Politics of Public Health, 30 J. Health Pol. Pol'y & L. 839, 842 (2005).
Id.
Id. at 840.
Id. (citing 1920 prohibition and the 1872 ban on contraceptives and abortion).
Id.
Overweight and Obesity: Adult Obesity Facts, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/obesity/data/adult.html
(last updated Mar. 28, 2014).
See, e.g., Bhattacharya & Sood, supra note 1, at 153.
10
Id. at 154.
11
Id.
12
Youfa Wang et al., Will All Americans Become Overweight or Obese? Estimating the Progression and Cost of the US Obesity
Epidemic, 16 Obesity 2323, 2323 (2008).
14
13
Evette Ferkassian, Expanding Waistlines: How Some States and Employers Are Responding to the Obesity Epidemic and Its Impact
on Rising Health Care Costs, 20 Annals Health L. 116, 118 (2010).
14
Letter from Baylen J. Linnekin, Exec. Dir., Keep Food Legal, to N.Y.C. Dep't of Health and Mental
Hygiene (July 24, 2012) [hereinafter Linnekin Letter], available at http://www.keepfoodlegal.org/PDFs/keepfoodlegal_nyc_
dohmh_beverage_comments.pdf.
15
Olff v. E. Side Union High Sch. Dist., 404 U.S. 1042, 1044 (1972) (Douglas, J., dissenting).
16
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 980 n.1 (1992) (Scalia, J., concurring in part and dissenting in part) (It drives
one to say that the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death.).
17
Bd. of Health, Notice of Adoption of an Amendment (81.53) to Article 81 of the New York City Health Code, Dep't Health &
Mental Hygiene (2012) [hereinafter Amendment Notice], available at http:// www.nyc.gov/html/doh/downloads/pdf/notice/2012/
notice-adoption-amend-article81.pdf.
18
See N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene, No. 653584/12, 2013
WL 1343607, at *2 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014).
19
Id. at *20.
20
Id.
21
City of Cleveland v. Ohio, 989 N.E.2d 1072, 1075 (Ohio Ct. App. 2013).
22
Id.
23
See N.Y.C. Health Code 81.08(a) (N.Y. Legal Publ'g Corp. 2014), available at http://www.nyc.gov/html/doh/downloads/pdf/about/
healthcode/health-code-article81.pdf; Balt. City, Md., Health Code 6-507(b) (2013).
24
S. F., Cal., Health Code art. 8, 471.4(a)(1) (2010).
25
Amendment Notice, supra note 17.
26
Id.
27
Michael M. Grynbaum, New York Plans to Ban Sale of Big Sizes of Sugary Drinks, N.Y. Times, May
30, 2012, available at http:// www.nytimes.com/2012/05/31/nyregion/bloomberg-plans-a-ban-on-large-sugared-drinks.html?
_r=1&ref=todayspaper&pagewanted=all.
28
See Amendment Notice, supra note 17.
29
Id.
30
Id.
31
Id.
32
N.Y.C. Health Code 81.03(s) (N.Y. Legal Publ'g Corp. 2014), available at http://www.nyc.gov/html/doh/downloads/pdf/about/
healthcode/health-code-article81.pdf
33
Amendment Notice, supra note 17.
34
See Memorandum of Understanding Between N.Y. State Dep'ts of Health & Agric. & Mkts. from Victor E. Pisani, Dir., Div. of
Envtl. Health Prot., to City/Cnty Dirs. of Envtl. Health Dist. Dirs. (Dec. 28, 2010) [[hereinafter Memorandum of Understanding],
available at http:// www.nyc.gov/html/oath/downloads/pdf/DOH%20MOU%2012_28_10.pdf.
35
Id. at 3.
15
36
Id. (emphasis added).
37
Id. (emphasis added).
38
Michael M. Grynbaum, Health Panel Approves Restriction on Sale of Large Sugary Drinks, N.Y. Times, Sept. 13, 2012, available
at http:// www.nytimes.com/2012/09/14/nyregion/health-board-approves-bloombergs-soda-ban.html?_r=1&.
39
Josh Margolin, Mayor Bloomberg Wants to Impose 16-Ounce Limit on Sugar Drinks, N.Y. Post, May 31, 2012, available at http://
www.nypost.com/p/news/local/supersize_smack_TebHeJsmQxoOjqawvfuXRL.
40
Editorial, New York Soda Cap Wouldn't Beat Obesity, USA Today, June 3, 2012, available at http:// usatoday30.usatoday.com/news/
opinion/editorials/story/2012-06-03/soda-16-ounces-Bloomberg/55366704/1.
41
Memorandum of Understanding, supra note 34, at 3.
42
Verified Article 78 & Declaratory Judgment Petition at 7-10, N.Y., Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C.
Dep't of Health & Mental Hygiene, No. 653584/12, 2013 WL 1343607 (N.Y. Sup. Ct. Mar. 11, 2013).
43
Id. at 1.
44
Id. at 6.
45
Id. at 7.
46
Id.
47
N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, No. 653584/12, 2013 WL
1343607, at *20-21 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014).
48
See Boreali v. Axelrod, 517 N.E.2d 1350, 1355 (N.Y. 1987).
49
Dutchess/Putnam Rest. & Tavern Ass'n v. Putnam Cnty. Dep't of Health, 178 F. Supp. 2d 396, 402 (S.D.N.Y. 2001) (citing Boreali,
517 N.E.2d at 1355-57).
50
McKinney v. Comm'r of N.Y. State Dep't of Health, 836 N.Y.S.2d 794, 805 (Sup. Ct. 2007), aff'd, 840 N.Y.S.2d 6 (App. Div. 2007).
51
Id.
52
N.Y. Statewide Coal., 2013 WL 1343607, at *9, *16-18.
53
Boreali, 517 N.E.2d at 1355.
54
Id.
55
N.Y. Statewide Coal., 2013 WL 1343607, at *8.
56
See Memorandum of Understanding, supra note 34, at 5.
57
58
Id.
59
Id.
60
Id. at *9.
61
Id.
62
Id.
16
63
Boreali v. Axelrod, 517 N.E.2d 1350, 1356 (N.Y. 1987).
64
Nicholas v. Kahn, 389 N.E.2d 1086, 1088 (N.Y. 1979).
65
N.Y.C. Charter 21 (2012).
66
Id. 28.
67
Id.
68
Levine v. Whalen, 349 N.E.2d 820, 822 (N.Y. 1976) (emphasis added) (citations omitted).
69
N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, No. 653584/12, 2013
WL 1343607, at *9 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014); see also
Amendment Notice, supra note 17, at 1.
70
N.Y.C. Charter 556(c)(2).
71
Id. 556(c)(9).
72
Id. 1043(a).
73
74
75
Id. at *15.
76
Id. (emphasis added). Obesity, even if considered a disease, lacks the emphasized characteristics quoted.
77
Id. at *16.
78
Id.
79
80
Leonard v. Dutchess Cnty. Dep't of Health, 105 F. Supp. 2d 258, 267-68 (S.D.N.Y. 2000).
81
See Brooklyn Union Gas Co. v. N.Y. State Human Rights Appeal Bd., 359 N.E.2d 393, 397 (N.Y. 1976) (calling reliance on legislative
inactivity questionable); see also McKinney v. Comm'r of N.Y. State Dep't of Health, 836 N.Y.S.2d 794, 805 (Sup. Ct. 2007) (The
Courts are hesitant to apply persuasive significance to legislative inaction. (citing Boreali v. Axelrod, 517 N.E.2d 1350, 1356 (N.Y.
1987)), aff'd, 840 N.Y.S.2d 6 (App. Div. 2007).
82
See N.Y.C. Council Res. 0768-2011 (Apr. 6, 2011), available at http://legistar.council.nyc.gov/LegislationDetail.aspx?

ID=862347&GUID=14B3F44A-502C-410F-96A2-8420D81DBB6C&Options=&Search=.
83
See N.Y.C. Council Res. No. 1264-2012 (Mar. 28, 2012), available at http://legistar.council.nyc.gov/LegislationDetail.aspx?
ID=1102925&GUID=5EAE5E93-0881-4D42-B76C-A47B70E7AAB4&Options=&Search=;N.Y.C. Council Res. No. 1265-2012
(Mar. 28, 2012), available at http:// legistar.council.nyc.gov/LegislationDetail.aspx?ID=1102924&GUID=B0BB5DD1-56C8-431CA191-221D3A678B4E&Options=&Search=.
84
See N.Y.C. Council Res. 1264-2012; N.Y.C. Council Res. 1265-2012.
85
Assemb. 10965, 2009-2010 Leg., Reg. Sess. (N.Y. 2010), available at http://assembly.state.ny.us/leg/?default_fld=&
bn=A10965&term=2009&Summary=Y&Text=Y.
86
Assemb.
843,
2011-2012
Leg.,
sh=printbill&bn=A00843&term=2011.
Reg.
Sess.
(N.Y.
2011),
available
at
http://assembly.state.ny.us/leg/?
17
87
Assemb. 8812, 2011-2012 Leg.,

Reg.
Sess.
(N.Y.
2012),
available
at
88
Assemb. 10010, 2011-2012 Leg.,

Reg.
Sess.
(N.Y.
2012),
available
at
89
See N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, No. 653584/12, 2013
WL 1343607, at *17 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014).
90
Id.
91
Id. at *18.
92
Id.
93
Id.
94
95
Chiropractic Ass'n of N.Y. v. Hilleboe, 187 N.E.2d 756, 757 (N.Y. 1962) (quoting Williams v. Mayor of Balt., 289 U.S. 36, 42 (1933)).
96
97
Id.
98
See id.
99
Id.
100
Id.
101
Id.
102
Id.
103
Id. at *20.
104
Id.
105
Id.
106
See N.Y. State Ass'n of Cntys. v. Axelrod, 577 N.E.2d 16, 20 (N.Y. 1991).
107
Pell v. Bd. of Educ., 313 N.E.2d 321, 325 (N.Y. 1974) (internal citations omitted).
108
Law Enforcement Officers Union, Dist. Council 82 v. State, 655 N.Y.S.2d 770, 774 (App. Div. 1997) ([T]here being no rational
basis for establishing a minimum square footage requirement for single and multiple occupancy housing units while having no such
requirement for double occupancy housing units, said distinction in treatment is arbitrary and capricious. (internal quotation marks
omitted)). It should be noted that the actions of federal agencies, like the Food and Drug Administration (FDA) are also subject
to arbitrary and capricious review. See 5 U.S.C. 706 (2012). It is for that reason that this Comment does not separately address
federal agency review.
109
See Amendment Notice, supra note 17 (defining sugary drink as one that is sweetened by the manufacturer or establishment,
i.e., not one sweetened by the consumer).
110
Id.; see also McDonald's USA Nutrition Facts for Popular Menu Items, McDonalds (Oct. 14, 2013), nutrition.mcdonalds.com/
getnutrition/nutritionfacts.pdf.
111
See McDonald's USA Nutrition Facts, supra note 110.
18
112
St. Vendor Project v. City of New York, 811 N.Y.S.2d 555, 562 (Sup. Ct. 2005) ([A] reviewing court is limited to considering the
reasons that an agency gives for its action, at the time that it takes the action. (citing Scherbyn v. Wayne-Finger Lakes Bd. of Coop.
Educ. Servs., 573 N.E.2d 562 (N.Y. 1991))), aff'd, 841 N.Y.S.2d 79 (App. Div. 2007).
113
See Amendment Notice, supra note 17.
114
Id.
115
N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, No. 653584/12, 2013 WL
1343607, at *20 (N.Y. Sup. Ct. Mar. 11, 2013), aff'd, 970 N.Y.S.2d 200 (App. Div. 2013), aff'd, 23 N.Y.3d 681 (2014).
116
Id. at *19.
117
Id.
118
Id. at *20.
119
Id.
120
Id.
121
N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health and Mental Hygiene, 970 N.Y.S.2d 200 (App.
Div. 2013), aff'd, 23 N.Y.3d 681 (2014).
122
The Daily Show with Jon Stewart: Drink Different (Comedy Central television broadcast May 31, 2012), available at http://
www.thedailyshow.com/watch/thu-may-31-2012/drink-different.
123
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 401 (1994) (quoting H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S.
525, 537-38 (1949)).
124
U.S. Const. art. I, 8, cl. 3.
125
U.S. Const. amend. X.
126
United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007) (explaining that the Court has long
interpreted the Commerce Clause as an implicit restraint on state authority, even in the absence of a conflicting federal statute).
127
Hughes v. Oklahoma, 441 U.S. 322, 336 (1979).
128
Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 99 (1994).
129
See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
130
Id.
131
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).
132
Id.
133
See, e.g., Consol. Freightways Corp. v. Kassel, 475 F. Supp. 544, 551 (S.D. Iowa 1979) (The total effect of the law as a safety
measure in reducing accidents and casualties is so slight and problematical that it does not outweigh the national interest in keeping
interstate commerce free from interferences that seriously impede it.), aff'd, 612 F.2d 1064 (8th Cir. 1979), aff'd, 450 U.S. 662 (1981).
134
Brown-Forman, 476 U.S. at 579.
135
Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 94 (1994).
136
OLTRA, Inc. v. Pataki, 273 F. Supp. 2d 265, 272 (W.D.N.Y. 2003).
137
Id.
19
138
W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 202 (1994).
139
See, e.g., Or. Waste Sys., Inc., 511 U.S. at 93 (surcharge on in-state disposal of out-of-state waste held facially invalid); Camps
Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 578-79 (1997) (tax exemption statute found facially invalid where it
favored charities serving in-state residents over charities involved principally in interstate business); Fulton Corp. v. Faulkner, 516
U.S. 325, 333 (1996) (state's intangibles tax on fraction of value of corporate stock owned by state residents that was inversely
proportional to corporation's exposure to state's income tax found facially discriminatory against interstate commerce and held
invalid).
140
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 394 (1994) (Though...[an] ordinance may not in explicit terms seek to
regulate interstate commerce, it does so nonetheless by its practical effect and design.).
141
OLTRA, Inc., 273 F. Supp. 2d at 272 (alteration in original) (quoting Brown & Williamson Tobacco Corp. v. Pataki, 320 F.3d 200,
209 (2d Cir. 2003)).
142
Aspartame Info. Center, http://www.aspartame.org/ (last visited Apr. 1, 2014).
143
Hughes v. Oklahoma, 441 U.S. 322, 337-38 (1979).
144
Michael E. Smith, State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203, 1239 (1986).
145
See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
146
Sherlock v. Alling, 93 U.S. 99, 103 (1876).
147
For example, Pepsi has twenty-two bottle manufacturing plants located in only four states. Locations, Pepsi Bottling Ventures, http://
www.pepsibottlingventures.com/locations/ (last visited May 1, 2014).
148
Pike, 397 U.S. at 142.
149
Kassel v. Consol. Freightways Corp., 450 U.S. 662, 670 (1981).
150
Calories in Chocolate-Flavor Milk, Calorie Count, http:// caloriecount.about.com/calories-chocolate-flavor-milk-i14177 (last visited

May 24, 2014).
151
Calories in Coca-Cola Classic, Calorie Count, http:// caloriecount.about.com/calories-coca-cola-classic-i98047 (last visited May 24,
2014).
152
Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 444 (1960).
153
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 575 (1986).
154
Id. at 583-84.
155
Id. at 582 (emphasis added).
156
Id. at 583.
157
Id. at 585.
158
Kassel v. Consol. Freightways Corp., 450 U.S. 662, 671 (1981) (footnote omitted).
159
See Sherlock v. Alling, 93 U.S. 99, 103 (1876) (noting that the Commerce Clause was never intended to cut the States off from
legislating on all subjects relating to the health, life, and safety of their citizens).
160
Kassel, 450 U.S. at 671.
161
Id. at 670.
162
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
20
163
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).
164
See, e.g., Daniel A. Farber, Legal Pragmatism and the Constitution, 72 Minn. L. Rev. 1331, 1355 (1988) ([T]here simply is no way a
court can distinguish a fundamental right from any other personal interest.... As a society we do share some notions about the relative
importance of various personal interests. Few people seriously think, for example, that the right to eat popcorn is as important as the
right to medical care.). This quote seemingly gives the right to eat fundamental status without offering analysis, but also recognizes
that it is not something likely to ever be up for debate because of its relative unimportance in relation to other fundamental rights.
165
Am. Can Co. v. Or. Liquor Control Comm'n, 517 P.2d 691, 694 (Or. Ct. App. 1973).
166
Id.
167
Id.
168
Id.
169
Id. at 702.
170
Id. at 703 (Because the bottle bill is a legitimate exercise of the police power, consistent with federal policy legislation, which does
not impede the flow of interstate commerce and which does not discriminate against non-Oregon interests, we hold that it is valid
legislation under the Commerce Clause.).
171
Id. at 704.
172
Id. at 705.
173
Id. at 704.
174
Id.
175
Id.
176
Id. (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).
177
See id. at 694.
178
Id. ([P]ull top cans), may not be sold at retail in Oregon. Id.
179
Id. at 704 (quoting McGowan, 366 U.S. at 425).
180
See There's a War on, You Know!, Ames Hist. Soc'y, http:// www.ameshistoricalsociety.org/exhibits/events/rationing.htm (last
visited May 15, 2014).
181
See Park & Shop Mkts, Inc. v. City of Berkeley, 172 Cal. Rptr. 515, 520 (Ct. App. 1981).
182
Id.
183
Id. (quoting Ry. Express Agency v. New York, 336 U.S. 106, 110 (1949)).
184
Id.
185
Id. at 519.
186
Grocers Dairy Co. v. McIntyre, 138 N.W.2d 767, 769 (Mich. 1966).
187
Id. at 767.
188
Id. at 769.
189
Id. at 770. Note that this case was decided in 1966, which explains the archaic reasoning of the legislature.
21
190
Id. at 769.
191
Id. at 770.
192
Id. (quoting Carolene Prods. Co. v. Thompson, 267 N.W. 608, 610 (Mich. 1936)).
193
Id. at 771.
194
Id.
195
Id. at 770-71.
196
Id. at 768, 771.
197
Deep, Deep Trouble, on The Simpsons Sing the Blues (Geffen Records 1990).
198
Amendment Notice, supra note 17 (emphasis added).
199
Theodore H. Frank, A Taxonomy of Obesity Litigation, 28 U. Ark. Little Rock L. Rev. 427, 428 (2006).
200
McDonald's USA Nutrition Facts, supra note 110.
201
Taco Bell, http://www.tacobell.com/food/menu/fresco (last visited May 24, 2014).
202
Wendy's, http://www.wendys.com/food/nutritious-options.jsp (last visited May 24, 2014).
203
Allison Aubrey, McDonald's to Post Calories on Menu Boards, Nat'l Pub. Radio (Sept. 13, 2012, 4:00 AM), http://
www.npr.org/2012/09/13/161050157/mcdonalds-to-post-calories-on-menu-boards.
204
Leon Stafford, Vending Machines to Display Calorie Counts in 2013, Atlanta J. Const. (Oct. 8, 2012, 10:23 AM), http:// www.ajc.com/
news/business/vending-machines-to-display-calorie-counts-in-2013/nSXW8/.
205
Id.
206
Mary Beth Quirk, Coca-Cola Taking Its Head Out of the Sand, Addressing Obesity for the First Time in Ads, Consumerist (Jan. 14,
2013), http://consumerist.com/2013/01/14/coca-cola-taking-its-head-out-of-the-sand-addressing-obesity-for-the-first-time-in-ads/.
207
Edieth Y. Wu, Mcfat--Obesity, Parens Patriae, and the Children, 29 Okla. City U. L. Rev. 569, 576 (2004).
208
Id.
209
Frank, supra note 199, at 433.
210
Id.
211
George Orwell, 1984 29-34 (Signet Classics 1950) (1949).
212
Id. at 7 (War is peace. Freedom is slavery. Ignorance is strength.).
213
Id.
214
Id. at 217.
a1
J.D. Candidate, South Texas College of Law, Spring 2014; B.A. in Theatre, University of Houston. This article is dedicated to Diet
Dr Pepper, without which I would have never made it through law school.
55 STXLR 553
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Big Brother Takes A Bite Out of The Big Apple and Gets A Worm Can Any Government Body Regulate Portions?

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BIG BROTHER TAKES A BITE OUT OF THE BIG APPLE..., 55 S. Tex. L. Rev.

55 S. Tex. L. Rev. 553

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.

III. Big Soda Fights Back

2016 Thomson Reuters. No claim to original U.S. Government Works.

A. The Board of Health's Violation of the Separation-of-Powers Doctrine

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.

B. Soda Ban Was Arbitrary and Capricious, Lacked Rational Basis

2016 Thomson Reuters. No claim to original U.S. Government Works.

A. Portion-Cap Laws Violate the Dormant Commerce Clause

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.

B. Withstanding Commerce Clause Attack, Portion-Cap Legislation Still Unconstitutional

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.

C. The Solution: Defensive Restauranting, Facilitating Informed Choices, and Self-Regulation

2016 Thomson Reuters. No claim to original U.S. Government Works.

See, e.g., Bhattacharya & Sood, supra note 1, at 153.

2016 Thomson Reuters. No claim to original U.S. Government Works.

S. F., Cal., Health Code art. 8, 471.4(a)(1) (2010).

Amendment Notice, supra note 17.

See Amendment Notice, supra note 17.

Amendment Notice, supra note 17.

2016 Thomson Reuters. No claim to original U.S. Government Works.

Id. (emphasis added).

Id. (emphasis added).

Memorandum of Understanding, supra note 34, at 3.

See Boreali v. Axelrod, 517 N.E.2d 1350, 1355 (N.Y. 1987).

N.Y. Statewide Coal., 2013 WL 1343607, at *9, *16-18.

Boreali, 517 N.E.2d at 1355.

N.Y. Statewide Coal., 2013 WL 1343607, at *8.

See Memorandum of Understanding, supra note 34, at 5.

N.Y. Statewide Coal., 2013 WL 1343607, at *8.

2016 Thomson Reuters. No claim to original U.S. Government Works.

Boreali v. Axelrod, 517 N.E.2d 1350, 1356 (N.Y. 1987).

Nicholas v. Kahn, 389 N.E.2d 1086, 1088 (N.Y. 1979).

N.Y.C. Charter 21 (2012).

N.Y.C. Charter 556(c)(2).

Boreali v. Axelrod, 517 N.E.2d 1350, 1351 (N.Y. 1987).

N.Y. Statewide Coal., 2013 WL 1343607, at *16.

Boreali v. Axelrod, 517 N.E.2d 1350, 1356 (N.Y. 1987).

See N.Y.C. Council Res. 0768-2011 (Apr. 6, 2011), available at http://legistar.council.nyc.gov/LegislationDetail.aspx?

See N.Y.C. Council Res. 1264-2012; N.Y.C. Council Res. 1265-2012.

2016 Thomson Reuters. No claim to original U.S. Government Works.

Assemb. 8812, 2011-2012 Leg.,

Assemb. 10010, 2011-2012 Leg.,

Boreali v. Axelrod, 517 N.E.2d 1350, 1356 (N.Y. 1987).

N.Y. Statewide Coal., 2013 WL 1343607, at *18.

See McDonald's USA Nutrition Facts, supra note 110.

2016 Thomson Reuters. No claim to original U.S. Government Works.

See Amendment Notice, supra note 17.

U.S. Const. art. I, 8, cl. 3.

U.S. Const. amend. X.

Hughes v. Oklahoma, 441 U.S. 322, 336 (1979).

Brown-Forman, 476 U.S. at 579.

OLTRA, Inc. v. Pataki, 273 F. Supp. 2d 265, 272 (W.D.N.Y. 2003).

2016 Thomson Reuters. No claim to original U.S. Government Works.

W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 202 (1994).

Aspartame Info. Center, http://www.aspartame.org/ (last visited Apr. 1, 2014).

N.Y. Statewide Coal., 2013 WL 1343607, at 9, 16-18.