AP

Court Affirms Strikedown of Bloomberg Soda Ban

New York City’s crackdown on big, sugary sodas is staying on ice.

An appeals court ruled Tuesday that the city’s Board of Health exceeded its legal authority and acted unconstitutionally when it tried to put a size limit on soft drinks served in city restaurants.

In a unanimous opinion, the four-judge panel of the state Supreme Court Appellate Division said that the health board was acting too much like a legislature when it created the limit, which would have stopped sales of non-diet soda and other sugar-laden beverages in containers bigger than 16 ounces.

The judges wrote that while the board had the power to ban “inherently harmful” foodstuffs from being served to the public, sweetened beverages didn’t fall into that category. They also said the board appeared to have crafted much of the new rules based on political or economic considerations, rather than health concerns.

The city’s law department promised a quick appeal.

“Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic,” Mayor Michael Bloomberg said in a statement.

New York’s effort to cap soda portions has drawn national attention, whether from diet companies lauding it as a groundbreaking step in America’s war on extra weight or from late-night TV hosts ribbing Bloomberg as a nutrition nanny.

The drinks limit follows other Bloomberg efforts to nudge New Yorkers into better diets. His administration has forced chain restaurants to post calorie counts on menus, barred artificial trans fats from restaurant fare and challenged food manufacturers to use less salt.

Bloomberg and city Health Commissioner Thomas Farley saw soft drinks as a sensible next front in a necessary fight: reining in an obesity rate that rose from 18 to 24 percent of adults in the city within a decade. Studies have tied heavy consumption of sugary drinks to weight gain, and the city had to start somewhere, the officials said.

“We have a responsibility, as human beings, to do something, to save each other. … So while other people will wring their hands over the problem of sugary drinks, in New York City, we’re doing something about it,” Bloomberg said at a news conference after the measure was struck down in March.

Critics said the city went too far in imposing a serving size limit.

“For the first time, this agency is telling the public how much of a safe and lawful beverage it can drink,” Richard Bress, a lawyer for the American Beverage Association and a coalition of other groups that challenged the regulation, told the appeals court at a hearing in June. “This is the government coercing lifestyle decisions.”

Opponents also said the measure’s limitations made it meaningless as a health tool but potentially devastating to businesses that would have to deny customers big sodas while neighboring establishments could still supersize them.

The regulation would apply in settings ranging from sandwich shops to table-service restaurants to movie theaters, but not in supermarkets or most convenience stores, as those establishments aren’t subject to city regulation. The measure also exempted alcoholic drinks and milk-based concoctions, including lattes.

The lower court judge, state Supreme Court Justice Milton Tingling, wrote in March that “the loopholes in this rule effectively defeat the stated purpose.” He also found that the Bloomberg-appointed Board of Health intruded on the City Council’s authority when it imposed the rule.

While the city appealed, Bloomberg has continued pushing the cause in other ways. In June, he and the mayors of 15 other cities urged congressional leaders to stop allowing food stamps to be used to buy soda and other sugary drinks, reviving an idea that had been broached for years.

5 Comments

  • THINK OF WHAT YOU DO TO YOURSELF

    I’m sorry that this has happened the soda is poison for the body. Today obesity and diabetes is rampant in the youth and the rest of the American community. The Mayor is absolutely correct. I work in a healthcare facility it is painful and hard to witness young children afflicted with such diseases. What would be the sin if the cup of soda would be smaller and, still get another cup if needed. When you get a 32 once soda just because you have it you will finish it. When the people get sick we all pay with our emotions and the money spent for the sicknesses. Just think of a family member that you love getting diabetes, high blood pressure and high cholesterol, on top of this obese, kidney problems, and for what? for sweets and soda.

    • Citizen Berel

      Mr. Think of what you do to yourself, you don’t get it.

      Call it poison poison poison. It’s Soda. Soda. Soda.

      The government is banning Soda.

      The government does not love you.

      The government is too powerful. And they continue to expand their domain.

      You don’t like soda so it’s all good.

      One day it will be something you do like.

      The government is not your mommy.

      The government does not love you.

  • pqu

    the fact is that many people are aware of the dangers of ingesting soda, but external control is not the way to do it. We must have education on it, as in leaflets and teaching about the dangers of it in all schools. Bloomberg is really showing how out of touch he is about many issues. I would love if there were no soda available anywhere, but people need to learn to reject it based on their own knowledge and choice.

  • To "Think of What You Do To Yourself"

    Why not think about what you wrote. You say you want people to think about what they do, and yet at the same time you obviously don’t want people to think because you want the government to enact a ban. I personally decided to stop drinking sugary beverages two years ago after I went without them on Pesach and realized I didn’t miss them, but that is for me to choose, not for the government to dictate.

  • declasse' intelelctual

    Just remember, it is our tax money that is supporting
    Nanny Bloomberg’s campaign. And, if he is so interested in our health, why does he not attack diet sodas made with aspertaine which is a definitive
    health hazard. And, Splenda is how many molacues away from petroleum.