3/11/2013
By Ivan Pereira
Finding the big soda ban hard to swallow, a state Supreme Court struck down the mayor’s controversial plan Monday — just a day before the Department of Health was set to put in action.
Mayor Michael Bloomberg vowed the city will appeal the ruling of the lawsuit filed by soda companies, the NAACP and other affected businesses. Judge Milton Tingling, who issued the decision, said the regulation that would make it illegal for certain stores and restaurants to sell sugary drinks in containers greater than 16 ounces was “arbitrary and capricious.” He added that the city was overstepping its jurisdiction.
“The rule would not only violate the separation of powers doctrine, it would eviscerate it,” the judge wrote in his 37-page decision.
The plaintiffs called the decision a win for city businesses who they say would have lost millions from the ban.
“The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban,” said Chris Gindlesperger, a spokesman for the American Beverage Association, one of the plaintiffs in the suit.
The mayor was adamant that the decision would be overturned in state appellate court, but it’s unclear when the city will file its appeal. Blooomberg said the case will be made that the regulation needed to be imposed ASAP to save lives, pointing out that 5,000 New Yorkers die each year from obesity.
“We believe it’s reasonable to draw a line and it’s responsible to draw a line right now,” he said at a news conference.
Under the law, any establishment that has a letter grade from the Department of Health would be fined $200 per violation for defying the ban. Diet sodas and dairy products over 16 ounces would not have been outlawed.
Supermarkets are exempt because they are regulated by the state, and Tingling said those exemptions made the mayor’s obesity fighting intentions moot.
“The loopholes in this rule effectively defeat the state purpose of the rule,” he wrote.
Dr. Lisa Young, an adjunct professor of nutrition and public health at NYU, disagreed with the ruling, saying that soda has no health benefits whatsoever.
“We’re not picking Doritos over potato chips, they’re doing things that have no nutrients. So it’s not capricious at all,” she said.
Young, who testified in favor for the ban during a health department public hearing in July, said she thinks the city will win in its appeal. She reiterated that this isn’t the first time a judge ruled against a health initiative that ultimately passed.
“The businesses, they always try to sue. They sued the first time around with the calorie postings, the judge struck that down and then the city fought back,” she said. (with Anna Sanders)
***
Players on both side of the soda ban legal case sounded off Monday.
“Sugary drinks are a leading cause of this epidemic. Today’s decision threatens the health of New Yorkers, but we are confident that we will win on appeal.”
— City Health Commissioner Thomas Farley.
“This issue was never about obesity, nor about soda. This was all about power.
— Matthew N. Greller of the National Association of Theatre Owners of New York State.
“This measure is part of the city’s multipronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year, and we believe the Board of Health has the legal authority – and responsibility – to tackle its leading causes,”
— Michael A. Cardozo, corporation counsel, NYC Law Department.
“It opened up a Pandora’s box of legislating people’s eating habits, especially when it came to nontoxic products people eat every day.”
— Eric Levine, director of the Dallas BBQ chain
(Ivan Pereira and Tim Herrera)
