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Bloomberg’s ban on big sodas exceed city’s authority, court rules

The New York City Board of Health “exercised a power which no legislative body has delegated to it,” by setting a cap on portion sizes of sugary drinks sold in the city, a New York Court of Appeals judge ruled yesterday. The decision upholds a lower court finding. A cap on the size of sugary drinks was enacted by former New York City Mayor Michael Bloomberg as part of a campaign to reduce obesity and its related health problems in the city.

A man drinks a large sweetened drink while attending a July 2012 protest opposing Mayor Michael Bloomberg's proposal to prohibit licensed food service establishments from using containers larger than 16 ounces.
A man drinks a large sweetened drink while attending a July 2012 protest opposing Mayor Michael Bloomberg's proposal to prohibit licensed food service establishments from using containers larger than 16 ounces.
Photo by Spencer Platt/Getty Images

The ban, which was to take effect March 12, 2013, prohibited food service establishments in the city from selling sugary drinks in sizes in excess of 16 ounces. Sugary drinks were defined as those containing more than 25 calories per eight-ounce serving. Drinks that are more than 50 percent milk or 100 percent fruit or vegetable juice were not included in the ban. The ban was struck down by New York State Supreme Court the day before it was to take effect.

The suit against the city Department of Health was brought by the American Beverage Association and a coalition of retailers. Opponents decried the regulation as government overreach, accusing Bloomberg of creating a “nanny state.” Bloomberg defended the ban, citing the medical costs caused by obesity and obesity related diseases, such as diabetes, made excessive sugar consumption a public health issue.

“Our proposal for reasonable portion sizes won’t prevent anyone from buying or drinking as much soda as they want, but it will help people keep from inadvertently taking in junk calories simply because the small drink they ordered was actually very large.” — Michael Bloomberg, former New York City Mayor

During his tenure as Mayor, Bloomberg actively sought to regulate unhealthy behaviors in the city. His 2002 Smoke Free Air Act banned smoking in restaurants and bars. In 2006, Bloomberg’s target was trans-fats, hydrogenated vegetable oils that are shown to raise harmful cholesterol levels. Effective 2008, New York City restaurants were prohibited from using trans-fats in their cooking. Under Bloomberg, the city also required that chain restaurants with 15 or more outlets post caloric counts of their standard menu items.

Yesterday’s ruling blocked reinstatement of the ban based on the regulatory powers of the Department of Health. It did not preclude legislative action on the issue. Current New York City Mayor Bill deBlasio expressed disappointment with the court’s decision, saying, “The negative effects of sugary drink over-consumption on New Yorkers' health, particularly among low-income communities, are irrefutable. We cannot turn our backs on the high rates of obesity and diabetes that adversely impact the lives of so many of our residents.”