Soda Ban Fizzles in Court

MANHATTAN (CN) - Mayor Michael Bloomberg's controversial ban on large sodas is unconstitutional, a state appeals court ruled.

The New York City Board of Health "overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks," Justice Dianne Renwick wrote for the four-judge First Department Appellate Division. "It therefore violated the state principle of separation of powers."

Bloomberg said in a statement that the decision was a "temporary setback," adding that he planned to appeal to "fight against the obesity epidemic."

Citing a need to address rising obesity rates in New York City, Bloomberg introduced the so-called Portion Cap Rule in May 2012, requiring that all food service establishments cap at 16 ounces the size of cups and containers used to sell sugary beverages.

A sugary drink was described as a non-alcoholic beverage that is sweetened by the manufacturer with sugar or another caloric sweetener, has more than 25 calories per 8 fluid ounces and does not contain more than 50 percent milk or milk substitute.

The rule "contained carve-outs" for alcoholic beverages, milkshakes, fruit smoothies and mixed coffee drinks, mochas, lattes and 100 percent fruit juices, according to the ruling.

The ban only applied to restaurants, delis, fast-food franchises, movie theaters, stadiums and street carts, and did not apply to grocery stores, convenience stores, bodegas, gas stations and other similar businesses.

Fourteen members of the New York City Council asked Bloomberg to put the ban to a vote, but that did not happen.

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

The New York County Supreme Court struck down the law in March -- on the eve it would take effect -- saying the sugary ban was an abuse of executive power.

Affirming, the appellate court took issue with the law's many loopholes, saying they "evince a compromise of social and economic concerns, as well as private interests."

Turning to the law's exemption for sugary milk or juice-based drinks, the court said the health board ignored the fact that the soda ban "does more than just target a specific food category. It also ignores that the board has never categorized soda and other targeted sugary drinks as inherently unhealthy."

Essentially, Renwick said, the law simply "prescribes a mechanism to discourage New Yorkers from consuming those targeted sugary drinks by dictating a maximum portion size that can be made available in certain fast service establishments" in an attempt to manipulate choices by trying to change consumer norms.

"Instead of offering information and letting the consumer decide, the board's decision effectively relies upon the behavioral economics concept that consumers are pushed into better behavior when certain choices are made less convenient," she wrote.

The court said the board's "selective restrictions" reveal that the health of New Yorkers wasn't its sole concern. "If it were, the 'soda ban' would apply to all public and private enterprises in New York City," Renwick wrote.

"By enacting a compromise measure - one that tempered its strong health concerns with its unstated but real worries about commercial well-being, as well as political considerations - the board necessarily took into account its own non-health policy considerations. Judged by its deeds rather than by its explanations, the Board of Health's jurisdictional rationale evaporates."

The health board had argued that the law filled a gap where there was no legislation to regulate the consumption of sugary drinks, and that it was within its authority to adopt sanitary regulations dealing with matters affecting the "promotion and protection of health."

Renwick disagreed, pointing to how both the City Council and State Assembly introduced, but failed to pass, bills to prohibit the sale of sugary drinks on government property and banning stores with 10 or more employees from displaying candy and sugary drinks at the check-out counter or aisle.

"The board's general jurisdiction statute, although seemingly broad in scope, does not authorize the board's action," Renwick wrote. "While the Portion Cap Rule employs different means of targeting the sale of certain beverages than those considered by the legislative bodies, it pursues the same end, and thus addresses the same policy areas as the proposals rejected by the state and city legislatures."

Although Renwick acknowledged the "deleterious effects" associated with excessive soda consumption, "the board did not bring any scientific or health expertise to bear in creating the Portion Cap Rule."

Renwick said the court's ruling was not meant to circumscribe the board's powers or to express an opinion on the wisdom of the soda consumption restrictions; it was a decision on the limits of power.

"Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health."

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