NY judge blocks soda ban in eleventh-hour ruling; city will appeal

A New York State judge struck down NYC Mayor Michael Bloomberg's proposed law to ban the sale of super-sized sugary sodas just one day before the rule was to take effect.

In blocking the soda ban on March 11, Justice Milton Tingling Jr. of the New York Supreme Court (the lower trial level) said the measure was “arbitrary and capricious," and that the loopholes in its wording effectively rendered the law useless.

“It applies to some but not all food establishments in the city,” Judge Tingling wrote in a 37-page ruling granting an injunction against the legislation. “It excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories.”

The measure would ban the sale of sugary sodas and other sweetened drinks in containers larger than 16 ounces by restaurants, movie theaters, street vendors and stadium concession stands.

But grocery and convenience stores (such as 7-Eleven, which sells the 32-oz. "Big Gulp" soda) are exempt, and the ban does not apply to water, diet soda, coffee drinks, milk or milkshakes, fruit and vegetable juices or alcoholic beverages.

Bloomberg himself noted that consumers could find a way around the law by refilling sodas (as long as the cup isn't larger than 16 ounces) or by buying two separate 16-oz. sodas.

Judge Tingling said this loophole would “defeat and/or serve to gut the purpose of the rule.” He also said the city's Board of Health doesn't have the power to propose and enact laws concerning public-health issues.

“One thing not seen in any of the Board of Health’s powers is the authority to limit or ban a legal item under the guide of ‘controlling chronic disease,' ” he wrote. “[That] would leave its authority to define, create, mandate and enforce limited only by its own imagination and create an administrative Leviathan."

The lawsuit Tingling ruled on was a class action filed in October 2012 by several groups, including the American Beverage Association, the National Restaurant Association, and the National Association of Theatre Owners.

In its suit against the NYC Board of Health, the plaintiffs alleged the board had no authority to enact the soda ban, which the group called an “unprecedented interference” with consumer rights.

Meanwhile, the city says it will appeal Tingling's decision. "We plan to appeal the decision as soon as possible, and we are confident the Board of Health’s decision will ultimately be upheld,” said Michael A. Cardozo, the Bloomberg administration’s chief counsel.

“We believe the Board of Health has the legal authority – and responsibility – to tackle the causes of obesity."

Just hours before Tingling's ruling, Mayor Bloomberg had expressed confidence that the soda ban could help stem the rising tide of obesity in NYC, and even suggested it be adopted nationwide.