March 11, 2013
(Reuters) – New York City’s ban on large sugary drinks from restaurants, movie theaters and other establishments was invalidated on Monday by a state judge as “arbitrary and capricious,” a day before it was to take effect.
The 11-hour decision was a blow to New York City Mayor Michael Bloomberg, whose top lawyer quickly vowed to appeal. Bloomberg has made public health a cornerstone of his administration, with laws prohibiting smoking in restaurants, bars and parks; banning trans fats; and requiring chain restaurants to post calorie counts.
New York City Corporation Counsel Michael Cardozo vowed to appeal and keep pressing the mayor’s case that the new law is needed to combat a growing obesity epidemic. The mayor successfully fought off past court challenges to the smoking ban and the calorie count rule.
“We plan to appeal the decision as soon as possible, and we are confident the Board of Health’s decision will ultimately be upheld,” Cardozo said in a statement.
Beverage manufacturers, restaurant and movie theater owners and other business groups had called the soda law an illegal overreach that would infringe upon consumers’ personal liberty.
The regulation would have prohibited the city’s food-service establishments from selling sugary drinks larger than 16 ounces (47 cl) starting on Tuesday, though city officials had said they would not begin imposing $200 fines on offending businesses until June.
But the ban only applied to businesses under the auspices of the health department, since it was the mayor-controlled health board, and not the city council, that approved the policy last fall. That meant that grocery and convenience stores – including 7 Eleven and its 64-ounce Big Gulp – were exempt from the regulation’s reach.
In his ruling, state Supreme Court Justice Milton Tingling in Manhattan zeroed in on the loopholes, noting it would only have applied to businesses that are under the purview of the health department, like restaurants.
“It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the rule … serve to gut the purpose of the rule,” he wrote.
He also expressed concern that to allow the health board such sweeping authority would “eviscerate” the separation of powers between the executive and the legislature branches of city government.
Chris Gindlesperger, a spokesman for the ABA, which represents companies including Coca-Cola, PepsiCo and Dr Pepper Snapple, said the ruling was a “sigh of relief” for New Yorkers and small businesses throughout the city.
But beverage industry consultant Tom Pirko of Bevmark Consulting in Santa Barbara, California, said the ruling could backfire if it convinces municipalities that the only way to reduce soda consumption is through higher taxes.
“If the guy with $14 billion can’t ram it through, we probably can’t either,” he said. “What the industry is very worried about is not
measures like Bloomberg’s, which is local and easy to walk around. What they’re worried about is taxes.”
In anticipation of the soda ban, Bloomberg on Monday released new data tying sugary drinks to the city’s fattest neighborhoods, though the ABA was quick to criticize its methodology.
Meanwhile, fast food restaurants and cafes had been scrambling on Monday to comply with the looming deadline. Many were confused over whether the rules applied to popular sweetened coffee drinks, underlining the ban’s uneven applications.
McDonald’s Corp said customers ordering a large coffee would be handed as many packets of sugar as they like on the side, to be poured into the drink at the customer’s leisure.
By contrast, Dunkin’ Donuts, which had been handing out leaflets to explain the law’s impact on its menu, decided its servers would hand over large drinks unsweetened and simply direct customers to a self-serve stand where sugar and flavored syrups are kept.
Public sentiment on the ban had appeared divided, with a Marist University poll last summer showing 53 percent of New York City adults against the ban and 42 percent in favor.
“The mayor took a bullet and now we’ll wait for the next big Bloomberg health initiative,” said Professor Douglas Muzzio of Baruch College. “He’s not going to stop.”