Judge Blocks New York Cityfs Limits on Big Sugary Drinks
Published: March 11, 2013 - New York Times
A judge invalidated New York Cityfs limits on large
sugary drinks on Monday, one day before they were to go into effect, dealing a
significant blow to one of Mayor Michael R. Bloombergfs 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
garbitrary and capricious.h
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.
gIt applies to some but not all food establishments in
the city,h Justice Tingling wrote. gIt excludes other beverages that have
significantly higher concentrations of sugar sweeteners and/or calories.h
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 gdefeat and/or serve to gut the purpose the rule.h The judge also appeared
to be skeptical of the purview of the cityfs Board of Health, which the
Bloomberg administration had maintained has broad powers to seek to better the
publicfs health. That interpretation, the judge wrote, gwould leave its
authority to define, create, mandate and enforce limited only by its own
imagination,h and gcreate an administrative Leviathan.h
After the judge imposed a stop to the ban, the
Bloomberg administration quickly said it would challenge the decision.
gWe plan to appeal the decision as soon as possible,
and we are confident the Board of Healthfs decision will ultimately be upheld,h
Michael A. Cardozo, the Bloomberg administrationfs chief counsel, said in a
statement. gWe believe the Board of Health has the legal authority — and
responsibility — to tackleh 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, when he would 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. gI think
youfre not going to see a lot of push back here at all,h he said. gI think
everybody across this country should do it.h
The American Beverage Association, the soft drink
industry trade group that led a campaign against the plan, said the court
decision gprovides a sigh of relief.h
The industry stood to lose tens of millions of dollars
if Mr. Bloombergfs proposal had been put into place, and industry executives
were concerned about a copycat effect, in which states and cities around the
country would follow New Yorkfs lead in cracking down on sweetened drinks. Taxes
on soda are currently being considered in Hawaii and Nebraska.
During hearings in Justice Tinglingfs 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 gludicrous.h At one point, James E. Brandt, the lead lawyer for the
industry, described the regulation as having been created by gscientists in the
room, working with the mayor, creating a regulation here that is going to cost
people a ton of money.h
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 cityfs movie theaters was quick
to hail the decision on Monday. gSerious problems like obesity cannot be
addressed by the imposition of an arbitrary and porous Mayoral fiat,h wrote
Matthew Greller, a spokesman for the National Association of Theater Owners of
New York State. gThis issue was never about obesity, nor about soda. This was
all about power.h
The cityfs attempt to limit soda sizes has been the
subject of worldwide curiosity and debate — not to mention mockery — since Mr.
Bloomberg unveiled the proposal last May. There were the usual late night
television punch lines, but the plan also galvanized a growing movement among
public health officials that believed sugary drinks were an outsize contributor
to the nationfs runaway obesity rates. Officials in cities like Los Angeles and
Cambridge, Mass., considered their own crackdowns on soda, a trend that further
worried the soft-drink industry.