Judge Bursts Bloomberg’s Soda Ban Bubble

MANHATTAN (CN) - New York City cannot ban large sugary drinks, a judge ruled Monday, slamming the rule as an abuse of executive power on the eve it would take effect.

"The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine," Justice Milton Tingling wrote for the New York County Supreme Court. "The rule would not only violate the separate of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar sweetened beverages."

In June, New York City's Board of Health proposed a statute banning the sale of sugary drinks in a cup larger than 16 fluid ounces, but the rule was "laden with exceptions based on economic and political concerns," the court found.

Grocery stores, convenience stores, bodegas and markets did not need to comply.

Portion control also did not implicate soy-based milk products, but it did cover almond, hemp and rice milk.

The "famous, or infamous, Big Gulp containers" available at 7-11 convenience sotres also ducked the regulation, according to the ruling.

Health board officials never denied allegations that it adopted verbatim the language for the ban that Mayor Michael Bloomberg had proposed.

About a half-dozen businesses and unions sued the city in October to stop the regulation.

In a 37-page order, Justice Tingling said obesity was not the kind of epidemic that the Board of Health has the unilateral authority to control.

New York City's original 1698 charter tasked the board with preventing "communicable, infectious and pestilent diseases," according to the opinion.

Tingling found that the city gained the power to recall or destroy food considered unwholesome in the early 20th century, but the board cannot regulate the food supply without trampling on the Legislature's domain.

New York City lawyer Michael Cardozo said in a statement that he plans to appeal the decision "as soon as possible."

"This measure is part of the city's multi-pronged 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," he wrote.

Businesses and unions opposed to the ban did not deny evidence that obesity kills more than 5,500 New York City residents a year and racks up about $4 billion in direct medical costs.

The parties dispute how much of this can be traced to large sugary drinks.

Mayor Michael Bloomberg applauded the health department's "bold action" in the face of the growing obesity epidemic.

"The Board of Health's limit on the serving size of sugary drinks does not limit anyone's consumption; it just requires them to think about whether they really want more than 16 ounces," he said in a statement.

After noting that the standard soda size was once 6 ounces, Bloomberg said it is "reasonable to draw a line - and it's responsible to draw a line right now."

"With so many people contracting diabetes and heart disease, with so many children who are overweight and obese, with so many poor neighborhoods suffering the worst of this epidemic, we believe it is reasonable and responsible to draw a line - and that is what the Board of Health has done," Bloomberg added. "As a matter of fact, it would be irresponsible not to try to do everything we can to save lives."

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