Paul A. Diller (Willamette University College of Law) has posted Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson (41 Fordham Urban Law Journal, (2013), Forthcoming) on SSRN. Here is the abstract:
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Local health agencies have been at the forefront of public health regulation in recent years. Despite this trend, scant scholarship has assessed the interesting doctrinal and normative questions that their rulemaking raises. This paper uses local health agency rulemaking, and the New York City portion-cap rule for sugar-sweetened beverages ("the Bloomberg soda rule"), in particular, as a prism through which to analyze local agency rulemaking. The article first explains why it is important — both doctrinally and practically — to determine whence local agency power flows. If agencies are created directly by state law, then their powers should be circumscribed by state law. If, on the other hand, agencies are local creatures, then local law should play a significant role in delineating their powers.
This article then argues that the willingness of local agencies to regulate the food, soda, and tobacco industries more stringently than the state or national governments, at least in many prominent instances, calls for a departure from the gloomy public-choice narrative of agency action. Clearly, local agency officials in cities like New York and Boston are not cowed by the well-funded industry groups that they are supposed to regulate, as public choice often predicts. For an alternative explanation of local agency activism, the article looks to the early work of Woodrow Wilson, as a political scientist, who argued that agencies should be apolitical entities staffed by technocratic elites who regulated for the common good. This article then asks whether the Bloomberg soda rule, championed by many health professionals — but scorned by the media, the food and soda industries, and much of the public at large — measures up to the Wilsonian ideal. Although the rule is a good example of elites regulating in a way that likely will promote the public health, elements of New York City’s institutional design make it more difficult for the rule to lay claim to the Wilsonian mantle of legitimacy.