N.Y. State Judge Halts Soda Ban


In September 2012—acting on an idea from Mayor Michael Bloomberg—the New York City Board of Health passed a ban on the sale of sugary soft drinks larger than 16 oz. in the area's eateries and entertainment venues. As the March 12, 2013 implementation date drew near, the state's Supreme Court heard arguments from special interest groups such as the American Beverage Association seeking a delay and possible strike down of the measure.

The day before the measure's enactment, state Supreme Court Justice Milton Tingling Jr. in Manhattan ruled the new regulation "arbitrary and capricious," declaring it invalid. In his opinion, he specified several concerns, identifying the ban's rules as:

• Arbitrary

Only certain types of high-calorie beverages and points of purchase were targeted.

• Self-defeating

The ability to obtain drink refills—so long as the cup measured 16 oz. or less—served to "gut the purpose of the rule."

Tingling also echoed the sentiment of many critics, voicing concern about the measure's passage via the city’s Board of Health—a group appointed by Bloomberg—as opposed to elected officials such as the City Council. Granting the health board these powers would “create an administrative Leviathan," the judge wrote, leaving "its authority to define, create, mandate and enforce limited only by its own imagination."

Michael A. Cardozo, corporation counsel for the New York City Law Department, commented in a statement, "We plan to appeal the decision as soon as possible, and we are confident the Board of Health’s decision will ultimately be upheld." He noted, “We believe the Board of Health has the legal authority—and responsibility—to tackle" the contributors to obesity.

“The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban," responded the American Beverage Association in a statement. "With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City."

Beverage Insights' co-founder James Tonkin stated, "This was a vindication of the entire beverage industry relative to artificial controls previously mandated by the mayor of New York City. In the first place, what gives any mayor or politician the right to mandate personal choice when it comes to food or beverage? George Orwell would roll over in his grave. My hope is as saner opinion prevails, actions like those of Mayor Bloomberg will not resonate anywhere else in our country. The responsibility for individual food and beverage consumption should remain with the individual, not the government."

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