In sum, we find that under the principles set forth in Boreali, the Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion [*15]Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners’ argument that the subject regulation was arbitrary and capricious.
Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH’s legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.
I offer no expertise on New York constitutional law, or separation of powers, but this opinion strikes me as a significant setback to the Bloomberg Administration’s slapdash effort to regulate this area. The court makes clear that if the proper procedures were followed, such a health law would be permissible. So much for Emily Bazelon’s charges of “conservative activism.”