Judge Blocks New York City’s Limits on Big Sugary Drinks

MICHAEL M. GRYNBAUM
March 11, 2013
The New York Times

A judge invalidated New York City’s ban on large sugary drinks on Monday, one day before it was to go into effect, dealing a significant blow to one of Mayor Michael R. Bloomberg’s signature public health initiatives and a marquee project of his third term.

The decision by Justice Milton A. Tingling Jr. of State Supreme Court in Manhattan blocks the city from putting the rules into effect or enforcing them.

Justice Tingling said the rule banning the drinks was “arbitrary and capricious.”

In his opinion, Justice Tingling specifically cited a perceived inequity in the soda rules, which applies to only certain sugared drinks — beverages with a high milk content, for instance, would be exempt — and would apply only to some food establishments, like restaurants, but not others, like convenience stores.

“It applies to some but not all food establishments in the city,” Justice Tingling wrote. “It excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories.”

The judge also wrote that the fact that consumers can receive refills of sodas, as long as the cup size is not larger than 16 ounces, would “defeat and/or serve to gut the purpose of the rule.” The judge also appeared to be skeptical about the purview of the city’s Board of Health, which the Bloomberg administration had maintained has broad powers to seek to better the public’s health. That interpretation, the judge wrote, “would leave its authority to define, create, mandate and enforce limited only by its own imagination,” and “create an administrative Leviathan.”

After the judge imposed a stop to the ban, the Bloomberg administration quickly said it would challenge the 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,” Michael A. Cardozo, the Bloomberg administration’s chief counsel, said in a statement. “We believe the Board of Health has the legal authority — and responsibility — to tackle” the causes of obesity.

The ruling stunned the Bloomberg administration, which was deep into preparations to begin enforcing the ban, and had even boasted on Monday that it should be applied nationally as a remedy to rising obesity rates. Mr. Bloomberg had scheduled a news conference for Tuesday morning to celebrate the inauguration of the new rule, and planned to stand with lawmakers who supported the initiative, according to a person told of the plans.

At a news conference on Monday, hours before the ruling, Mr. Bloomberg predicted little resistance to the measure. “I think you’re not going to see a lot of pushback here at all,” he said. “I think everybody across this country should do it.”

During hearings in Justice Tingling’s courtroom over the past few months, at which he considered a challenge to the ban, lawyers for the beverage industry, which was represented by the high-powered corporate firm Latham & Watkins, presented their argument in high dudgeon, calling the rules “ludicrous.” At one point, James E. Brandt, the lead lawyer for the industry, described the regulation as having been created by “scientists in the room, working with the mayor, creating a regulation here that is going to cost people a ton of money.”

In contrast, lawyers for the Bloomberg administration offered a subdued, highly technical rebuttal that only occasionally addressed the broader rationale for the rule, which they said would fight obesity in the city. One city lawyer was asked by the court reporter to repeat his points, because she could not hear him.

A trade group for the city’s movie theaters was quick to hail the decision on Monday. “Serious problems like obesity cannot be addressed by the imposition of an arbitrary and porous Mayoral fiat,” wrote Matthew Greller, a spokesman for the National Association of Theater Owners of New York State. “This issue was never about obesity, nor about soda. This was all about power.”