By E. C. GOGOLAK
July 30, 2013 New York Times - An appeals court on Tuesday unanimously upheld a decision striking down New York City’s restrictions on the sale of large, sugary drinks, dealing a serious blow to Mayor Michael R. Bloomberg’s hopes of reviving the rule before his term runs out.
The court, the First Department of the Appellate Division of State Supreme Court in Manhattan, concurred with a lower court’s ruling that the city’s Board of Health, appointed by the mayor, overstepped its bounds as a nonlegislative body by approving the rule. The justices also said that the various exceptions and carve-outs in the rule demonstrated that the board was concerned with matters beyond its core mission to improve public health.
“Such mechanism necessarily looks beyond health concerns, in that it manipulates choices to try to change consumer norms,” Justice Dianne T. Renwick wrote. The board, the decision stated, “violated the state principle of separation of powers.”
Seeking to reduce runaway obesity rates, the rule was announced by Mr. Bloomberg in May 2012 and approved by the health panel in September. The measure would have prohibited the sale of many sweetened drinks in containers larger than 16 ounces, but the appeals court wrote that the rule was laden with confusing loopholes and exemptions.
Only establishments that received inspection grades from the city’s health department, including movie theaters and stadium concession stands, would have been subject to the ban. Those with self-service drink fountains, like most fast-food restaurants, would be prohibited from stocking cups larger than 16 ounces. Meanwhile, vending machines and some newsstands would be exempt, along with convenience stores. The signature 64-ounce Big Gulp at 7-Eleven would escape the soda ban unscathed.
The rule also would not have affected fruit juices, dairy-based beverages like milkshakes and mixed coffee drinks, no-calorie diet sodas or alcoholic beverages.
Opposition to the limitations has been vocal, as city business owners and consumers deemed the rule and its loopholes unworkable and unenforceable. These concerns were voiced by Justice Milton A. Tingling of State Supreme Court in March, when he struck down the soda ban a day before it was scheduled to go into effect, calling the restrictions “arbitrary and capricious” and an overreach of the Board of Health’s power. Justice Tingling said the City Council would have to approve such a measure.
The argument against the ban has raised questions about the power held by the health panel, which has traditionally enjoyed a broad purview; the board has placed restrictions on lead paint and prohibited trans fats in food at city restaurants. The Bloomberg administration has argued that the city’s unchecked obesity epidemic should be similarly categorized as a broad and serious public health matter.
The ruling on Tuesday could mean the end of a signature effort of the Bloomberg administration and a centerpiece of the mayor’s third-term public health agenda, and leaves little time for the city to bring the plan back to life given Mr. Bloomberg’s waning time in office.
The city plans to appeal to the Court of Appeals, the highest appellate court in New York State. Officials in the city’s legal department could try to have the appeal argued — and, potentially, decided — before the end of the year, when Mr. Bloomberg’s term ends. But such an expedited appeal would be dependent on a number of procedural factors breaking in the city’s favor. Lawyers for the soda industry may also try to drag out any proceedings so the case would spill into the administration of a new mayor, and none of the current candidates for City Hall have expressed significant interest in continuing to fight for the restrictions.
In a statement on Tuesday, Mr. Bloomberg called the ruling “a temporary setback” and referred to “the irreversible health impacts of obesity and Type 2 diabetes — both of which are disproportionately linked to sugary drink consumption.” He said his office would “continue the fight against the obesity epidemic” and appeal the case.
Critics of the ban, however, do not seem to think that such an appeal would stand a chance. “With this ruling behind us,” said Christopher Gindlesperger, a spokesman for the American Beverage Association, “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.”