The battle has been escalating since a few states and cities have begun to implement stricter regulations on suspected toxins in the food supply, such as lead in candy, mercury in fish, and pesticides in vegetables. Now, trans fats -- which come from the hardening of oils through a process known as hydrogenization -- are being zeroed in on due to their links to dangerous cholesterol problems in people, as well as an epidemic of heart disease deaths, according to some studies.
Some public health law experts are surprised at New York's bold move, since federal regulations on hydrogenated oils has been light, and the FDA has only just required they be listed on food labels this year.
Lawrence O. Gostin, an associate dean at Georgetown University's law school and director of the Center for Law and the Public's Health, said it was a "breathtaking" action for the city to take, but added that he was sure it would prompt a lawsuit from big fast food companies and restaurants that use artificial trans fats in a vast majority of their food, charging that New York had overstepped its authority.
"Certainly if there is a local deli in New York that is regulated by the local health department, it is clearly for the city to decide what is safe and what isn't," Gostin said, "But if you're talking about large chains like McDonald's or Burger King ... then there are powerful questions of federalism at stake.
"On the other hand, when the federal government refuses to act or neglects to act in the face of a major health crisis, then sometimes you need cities and states to step in to the vacuum and protect the public. And this might be one of those cases."
Anthony M. DiLeo, a professor of health care law at Tulane Law School who also teaches at Tulane Medical School, said that while a precedent exists for public health agencies to ban inherently dangerous items, a city's authority over something like trans fats is unclear.
"You get to something here that is not a bacteria, it is not a virus, it is not an immediate danger ... One meal containing a trans-fat is not dangerous, per se," DiLeo said. "If you have the authority to ban that, you would have to assume you have the authority to ban all sorts of things that, in small amounts, can't be harmful, but in large amounts could be."
Thomas Frieden, commissioner of New York City's Department of Health and Mental Hygiene, said he was unconcerned about any legal battle that the ban may yet face, since the Supreme Court has ruled that health departments have authority to prohibit the sale of foods that are impure, unfit for use, or spread disease. Frieden noted that plenty of evidence exists that artificial trans fats cause heart disease, and that the substance was more akin to cancer-causing agents than other unhealthy food ingredients, such as saturated fats or salt.
"If these were cancer deaths, people would react very differently," Frieden said.
Mike Adams, food industry critic and author of "Grocery Warning," agreed.
"The actions, tactics and intent of the food industry are a national disgrace," Adams said. "Every city, state and nation has the right to protect its children from food ingredients that harm health, promote degenerative disease and increase the risk of birth defects. Hydrogenated oils do all of these."
Before it can be passed or denied in a Board of Health vote in December at the earliest, New York's proposal must face a public hearing on Oct. 30.