whether a product ban is implemented. All product bans, for instance, must
conform to due process. The Fifth and Fourteenth Amendments prohibit
government from depriving people of life, liberty, or property without due
process of law (procedural due process) and guarantee that they will not encroach on the rights of citizens (substantive due process). Procedural due
process shields legal processes (e.g., the right to notice, the right to stand
trial) when government action deprives a person of life, liberty, or property.
Thus government may violate procedural due process by failing to provide
affected parties with notice or the opportunity for a hearing before banning
a product. Substantive due process, in contrast, focuses on whether there is
sufficient justification for governmental decisions to dispossess an individual of his or her rights.
101 As a result, government must ground public
health-driven product bans in scientific evidence that sustains negative
Failing to appropriately justify and rationalize the product ban exposes
regulators to substantive due process challenges because their actions may
be deemed arbitrary.
102 The attempted New York City soda ban in 2013
tested this standard.
103 At the trial level, the ban failed primarily because it
targeted only certain vendors and outlets. The trial judge did not criticize
the perceived weak link between sugary drinks and obesity. Rather, he
opined that the regulation “is arbitrary and capricious because it applies to
some but not all food establishments in the city. . ., and the loopholes inherent in the rule” gut its purpose.
The Administrative Procedure Act (APA) sets forth rulemaking practices
requiring federal agencies to solicit public input and respond to comments
101. Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L. A. L. REV. 1143, 1149 (1992).
102. Mathews v. Eldridge, 424 U.S. 319, 332 (1976); see Coleman v. Mesa, 284 P.3d
863, 870 (Ariz. 2012). Additionally, product bans that infringe on fundamental rights (e.g.,
owning a firearm) may violate substantive due process protection. See generally McDonald
v. Chi., 130 S. Ct. 3020 (2010). States that ban products without infringing on “fundamental
rights,” however, may succeed against due process claims. See Williams v. Attorney Gen. of
Ala., 378 F. 3d 1232, 1233 (11th Cir. 2004) (upholding Alabama ban on the commercial distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs for anything of pecuniary value.” (internal citations omitted)). ALA.
CODE § 13A–12–200.2(a)( 2) (West, WestlawNext through Act 2014-413 of the 2014 Regular Session).
103. See N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y. C. Dep’t of
Health & Mental Hygiene, 970 N. Y.S.2d 200, 208-09 (2013).
104. Michael M. Grynbaum, Judge Blocks New York City’s Limits on Big Sugary
Drinks, N.Y. TIMES, Mar. 11, 2013, http://www.nytimes.com/2013/03/12/nyregion/judge-
invalidates-bloombergs-soda-ban.html?_r=0. A copy of the N.Y. State Supreme Court
(Manhattan) order is available online at: http://www.wnyc.org/media/resources/2013
/Mar/11/SugaryDrinks.pdf; see also 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
* 20 (N. Y. App. Div. 2013).