The Legacy of 1987 Boreali v. Axelrod: Board of Health Rule-Making Under Siege

Abstract

We explore how a 1987 New York State court decision—Boreali v. Axelrod—affected public health rule-making nationally and, with considerable impact, locally in New York City (NYC).

We discuss the history of the origin of the NYC Board of Health (BOH), and establish that legislatures can be challenging venues in which to enact public health–related laws. We describe how, as the NYC Department of Health and Mental Hygiene began to tackle modern public health problems (e.g., chronic diseases caused by food and tobacco), the regulatory power of its BOH was challenged.

In an era when industry funds political causes and candidates, the weakening of the independence of rule-making boards of health, such as the NYC BOH, might result in illness and death.

In the past several years, there has been growing consensus in the field of public health that healthy choices should be default options. Changing the environment so that people eat healthier foods or live more active lifestyles by default is a more effective way to improve health than imploring people to do the right thing.¹ In many jurisdictions, such acknowledgment has brought policy, regulation, and legislation to the forefront of the public health agenda. For example, the New York City (NYC) Board of Health (BOH) and the New York State (NYS) Public Health Council (PHC) function as extensions of the NYC Department of Health and Mental Hygiene (DOHMH) and the NYS Department of Health, respectively, to pass and amend health-based regulations. These boards of health—of which there are about 3000 nationally—are exclusively focused on public health, free from the political considerations that too often limit the ability of legislatures to adopt laws that support public health.

When public health is politicized, laws passed to reduce morbidity and mortality may fail to adequately address risks. It was for this reason that the direct predecessor of the NYC BOH—the Metropolitan Board of Health—was created in 1866 to ensure that conditions that were causing cholera in NYC could be addressed free from political influence.² Public health has historically relied on state, rather than federal, regulation. Compelling quarantines or vaccinations, as in the landmark 1905 Jacobson v. Massachusetts case,³ was through the use of the police power vested in the state and delegated to a local board of health. Today, the 11 members of the NYC BOH are appointed by the mayor and approved by the NYC Council. They are neither paid, nor can they be removed without cause. They are chosen for their knowledge of and commitment to public health; their decisions are based on science.

We explore how a 1987 NYS court decision—Boreali v. Axelrod⁴—reverberated through the annals of public health rule-making nationally and, with considerable impact, locally in NYC. We discuss the history of the NYC BOH, with its broad authority to regulate matters that affect health, and amplify our earlier comment on the risk to the public posed by the judicial undermining of regulatory authority.⁵ We establish why legislatures can be challenging venues in which to enact public health–related laws. In addition, we describe how, as NYC DOHMH began to tackle modern public health problems (e.g., chronic diseases caused by food and tobacco), the regulatory power of its BOH was challenged. In an era when industry regularly funds political causes and candidates,⁶ the price of weakening the independence of boards of health may be paid in illness and death.

BACKGROUND

Court decisions can sometimes create more questions than they clarify. A 1987 NYS decision—Boreali v. Axelrod—has proven problematic for state and local boards of health nationally for more than 3 decades. The case revolved around the separation of powers doctrine and the respective roles of the legislative and executive branches of government. The immediate effect of Boreali was an unnecessary 2-year delay in protecting New Yorkers from secondhand smoke while dining out and in other venues. (In 1989, the NYS legislature enacted smoking restrictions similar to those struck down by the court.) More widely, the decision led to similar attacks on the efforts of boards of health nationally to tackle smoking in their jurisdictions.^7,8 More profoundly, it created a mechanism for industry to challenge regulations it does not favor by creating controversy. In light of recent developments in which industry successfully curtailed future efforts to tax sugar-sweetened beverages (SSBs) in California—by threatening the taxation authority of local jurisdictions⁹—society can ill afford additional avenues to weaken custodianship of public health.

The problems with Boreali are evident in the application of the decision to rule-making in NYC. NYC is illustrative, in part, because it has historically positioned itself at the forefront of public health innovation by taking on issues not previously addressed through regulation. At the outset, Boreali was not a decision intended to thwart pioneering public health advances. It was a case concerned with which branch of government had the right to regulate smoking in public places.

SECONDHAND SMOKE EXPOSURE AND BOREALI (1987)

In the years between 1972—when the US Surgeon General first reported that involuntary exposure to tobacco smoke was harmful to health¹⁰—and 1975, the NYS legislature banned indoor smoking in transportation centers, libraries, museums, and theaters.¹¹ Then, inertia set in. During the next decade, about 40 bills were proposed, unsuccessfully, to increase protection from exposure to secondhand tobacco smoke in NYS.⁴ With the legislature stymied, the NYS PHC stepped in.

In November 1986, PHC voted to ban smoking in schools, hospitals, auditoriums, and other settings. The regulation required nonsmoking sections in restaurants with seating for more than 50 individuals, but excluded restaurants with fewer seats.⁴ In 1987, in Boreali v. Axelrod, the NYS Court of Appeals struck down PHC’s expanded NYS smoke-free air regulation.

The decision of the court was not science-based. It acknowledged the value of protecting the public from secondhand tobacco smoke.¹² However, the court fashioned a 4-pronged set of “coalescing factors” intended to elucidate the line between regulating and legislating. It was a litmus test that struck down the rule based on the separation of powers doctrine—that is, PHC had overstepped its authority and entered into the realm of legislating, an activity expressly reserved for the legislature.

The test of the court consisted of 4 components: (1) PHC carved out exceptions based solely (and therefore, impermissibly) on economic and social considerations (rather than public health considerations); (2) PHC acted without legislative guidance (administrative agencies are empowered to promulgate regulations to implement laws made by legislatures, not make their own policies); (3) PHC acted in an area in which the legislature had attempted—and failed—to enact a law; and (4) PCH did not need special expertise to fashion the regulation.

BOREALI’S FOUR FACTORS

Factor #1 of the Boreali decision emphasized that exempting small restaurants for economic, not health-based, reasons constituted legislating. Although that rationale was reasonable in that circumstance, the argument has since evolved to such an extreme that the inclusion of any non-health–based exceptions can be flagged or framed as legislating by those interested in having a rule struck down.

In reality, administrative rules may need to include exceptions for operational feasibility or for an agency to stay within the bounds of its legal jurisdiction.¹³ Rejecting all non-health–based exceptions on Boreali grounds is simply not practicable. For example, the calorie-labeling requirement passed by the NYC BOH in 2008¹⁴ was applicable only to food service establishments that were chains because they had standardized menu items, ingredients, and portion sizes. The exemption was an operational necessity; independent restaurants, with their changing menus and nonstandardized recipes, could not have practically complied with the labeling requirement.¹⁵ In addition, making a rule applicable only to entities regulated by the promulgating agency—and exempting those that are not—is merely reflective of the jurisdictional authority of the agency. It is not a policy choice indicative of legislation.

Factor #2 held that PHC had acted without legislative guidance. The notion that boards of health have neither the authority nor the expertise to act without guidance from their respective legislatures is misleading. The Boreali decision essentially ignored the general legislative authority granted to PHC in Section 225 of NYS Public Health Law to deal with any matter affecting the improvement of public health. Then, in 2014, when Boreali was invoked in the NYC portion cap case (discussed in the following section), the court similarly ignored the general authority legislatively granted the NYC BOH in Section 556 of the NYC Charter to regulate all matters affecting health, as well as specific authorities to control chronic disease, and to regulate the food supply. The NYC BOH has enacted numerous regulations under these authorities, including rules on creating a diabetes registry (2006) and issuing restaurants letter grades (2010), to name a few.

In factor #3, in which PHC acted in an area in which the legislature attempted and failed to enact a law, the court noted that regulating public smoking, when previously taken up by the legislature, created “substantial public debate and vigorous lobbying by a variety of interested factions.”^16(p13) In other words, if industry, particularly, the powerful and well-funded tobacco industry, did not want to see this regulation implemented (which it did not), it need only continue to use the tactics it had successfully used to thwart the passage of other legislation—enlist paid professionals to conduct and defend erroneous scientific research, and hire front organizations to foment agitation.¹⁷ This Boreali factor evolved into the troubling proposition that administrative agencies should be wary of tackling controversial issues.

Factor #4 put forth that the regulation in question did not require special expertise from PHC. Some regulations are more complex than others; the fact that a particular rule is not complicated should not divest a board of health of its authority to act. For example, its public health expertise may lie in recognizing the severity of a problem or formulating appropriate remediation.

The Boreali decision inadvertently codified the nefarious playbook of the tobacco industry; any motivated industry can similarly ensure that an issue becomes controversial, debated, and held hostage in a legislature. In addition, Boreali argued that “difficult social problems”¹⁶ should be decided by legislatures. However, legislatures are composed of elected officials who may not prioritize public health in the face of needing campaign donations and political alliances for re-election. Legislators answer to many stakeholders, including special interests; boards of health are composed of doctors, scientists, academics, and other experts interested only in public health outcomes.

FROM MICROBES TO INDUSTRY

The full implications of Boreali would not be revealed until the NYC DOHMH began to address chronic disease using a regulatory framework. Historically, the earliest public health efforts focused almost exclusively on infectious diseases such as cholera and typhoid. Today, much of public health is focused on chronic illnesses such as cancer and heart disease. The historic shift in the leading causes of morbidity and mortality from communicable disease to chronic diseases occurred around the 1930s. It is no longer seen as controversial to pass regulations to control infectious illnesses, but mitigating chronic diseases associated with unregulated industry practices has been challenged. Notably, the NYC Charter vests DOHMH with explicit authority to control communicable and chronic disease.¹⁸

In 2012, the NYC BOH introduced a regulation to limit to 16 ounces the container size of SSBs served in restaurants and other food service establishments under the regulatory purview of DOHMH. A serving of soda had grown 8-fold from 6 ounces in the 1930s to as much as 48 ounces in the 2010s. The evidence linking overconsumption of SSBs to obesity was strong.¹⁹ Industry responded aggressively, spending millions to paint the regulation as restricting consumer freedom.²⁰

In 2014, the NYS Court of Appeals struck down the portion cap rule,²¹ drawing heavily from Boreali.²² The troubling evolution of Boreali is evident in the court’s repeated mentions of the rule creating a “groundswell of public interest and concern” and raising “intricate and controversial issues.” In the 1987 NYS smoke-free air Boreali decision, the litmus test included an issue being “difficult”; in the 2014 NYC portion cap Boreali-invoked decision, the litmus test became an issue being “controversial.”

Controversy is not a reasonable measure by which to judge the suitability of public health regulations. Controversy is by definition subjectively determined. Several noteworthy NYC BOH regulations would have been struck down had they been subjected to the controversy litmus test. Fluoridating drinking water in 1965 was denounced as “forced medication”²³; today, it is hailed as one of the great advances of public health of the 20th century.²⁴ Requiring window guards in multiple-dwelling housing in 1976 was very contentious.²⁵ Over time, it significantly reduced child deaths²⁶ and was adopted by jurisdictions worldwide.²⁷

Invoking Boreali has become problematic because controversy can be manufactured (by those interested in specific outcomes) through the use of well-funded media campaigns, the repeated introduction of bills that legislatures will not pass, and the drumming up of public concern by engaging unhappy factions.²⁸

CHANGING TIMES, PRIORITIES, AND APPROACHES

In 1987, Boreali was for some an appropriate response to PHC’s attempted “end run” around an unmovable legislature.²⁹ However, PHC got more than it bargained for—Boreali essentially neutralized PHC, which would pass virtually no complex public health regulation in the following 2 decades.

When Boreali was invoked in 2014 to strike down the NYC portion cap regulation in New York Statewide Coalition of Hispanic Chamber of Commerce v. the NYC Department of Health and Mental Hygiene,²¹ it threatened the same diminished fate for the NYC BOH. Judge Susan Read’s dissent warned that the decision, “curtails the powers of the NYC BOH to address the public health threats of the early 21^st century.”³⁰

The NYC BOH may not have experienced the same fate in 2014 as the NYS PHC experienced in 1987. A 2015 BOH regulation that required the posting of salt warnings in chain restaurants on items or combos with more than a full day’s worth of sodium (2300 mg)³¹ prevailed, despite a Boreali challenge. In February 2017, an appellate court found that the BOH had the authority to require the warning.³²

A 2016 decision by the same court invoked Boreali to strike down a NYC BOH regulation that required children aged younger than 5 years attending child care or preschools regulated by DOHMH to receive influenza vaccinations.³³ The decision claimed that the BOH had entered into legislating because the rule included an “opt-out provision” and applied only to facilities DOHMH regulated. In June 2018, the NYS Court of Appeals upheld the authority of the BOH to regulate the vaccination requirements.³⁴ However, the ruling addressed “reducing the prevalence and spread of a contagious infectious disease,” an area still seen as more acceptable for boards of health to regulate than chronic disease.

The public health landscape has changed significantly since the creation of the Metropolitan Board of Health in 1866. Today’s leading causes of preventable death—chronic diseases—are not as straightforwardly addressed as communicable diseases, which follow fairly knowable pathways of infection and control. If there were simple approaches for reversing obesity and diabetes, health departments would be implementing them. Instead innovative strategies—such as limiting the serving size of SSBs—are needed. If the evidence base is thin, it needs to be created.

IMPLICATIONS OF BOREALI FOR PUBLIC HEALTH

The most concerning public health implication of Boreali is that it threatens to relegate boards of health to regulating only noncontroversial issues despite their broad legislative authority to address the public health challenges of the 21st century. Determining whether an issue is controversial is susceptible to the actions of industry and other interested parties. By codifying the tobacco industry’s playbook for thwarting regulations, Boreali has become “usurpable” by those looking to jettison regulations (that impinge on commercial interests) or shift such decision-making to legislatures (where legislators may look more kindly on their cause).

Boreali’s framework increases the vulnerability of public health actions that carry private sector consequences, no matter the potential public benefit. Those seeking to impede the passage of public health regulation need only create controversy, scientific or social. After the 2014 portion cap decision, courts became more willing to invoke Boreali and to apply it more broadly to a variety of cases.^35,36

Whether Boreali will continue to be invoked by the courts—too often in response to industry-manufactured “noise”—remains to be seen. In our view, Boreali has not clarified where the “difficult-to-define line” between regulation and legislation should be drawn. Rather, it has imposed a confusing, impractical set of parameters and made vulnerable one of the great foundations of public health infrastructure—strong, independent boards of health.