From NRA Restaurant SmartBrief, and the New York Times – New York’s Ban on Big Sodas Is Rejected by Final Court; By MICHAEL M. GRYNBAUMJUNE 26, 2014
The Bloomberg big-soda ban is officially dead.
The state’s highest court on Thursday refused to reinstate New York City’s controversial limits on sales of jumbo sugary drinks, exhausting the city’s final appeal and dashing the hopes of health advocates who have urged state and local governments to curb the consumption of drinks and foods linked to obesity.
In a 20-page opinion, Judge Eugene F. Pigott Jr. of the New York State Court of Appeals wrote that the city’s Board of Health “exceeded the scope of its regulatory authority” in enacting the proposal, which was championed by former Mayor Michael R. Bloomberg. Judge Pigott wrote that the complexity of the proposal and its reach into the everyday lives of millions meant that the City Council ought to address it instead.
The ruling was a major victory for the American soft-drink industry, which had fought the plan. Two lower courts had already ruled against the city, saying it overreached in trying to prohibit the sale of sugary drinks in containers larger than 16 ounces.
The court’s 4-to-2 decision could also have larger implications for city agencies like the Board of Health in their ability to generate high-profile initiatives that can withstand legal challenges.
In a blistering dissent of the opinion, Judge Susan P. Read wrote that the ruling ignored decades of precedent in which the board was given broad purview to address public health matters, such as regulating the city’s water supply and banning the use of lead paint in homes.
The opinion, Judge Read wrote, “misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century.”
But in the majority opinion, Judge Pigott drew a sharp distinction between the soda proposal and past initiatives of the board, such as banning trans fats in restaurants. He wrote that those earlier policies had a more direct link to the health of the public and represented “minimal interference with the personal autonomy” of New Yorkers.
That did not quell the concerns of some legal experts.
“It casts a cloud over the ability of administrative agencies to engage in innovative forms of regulation,” said Richard Briffault, a law professor at Columbia who filed a brief supporting the city.
Robert Bookman, a lawyer who frequently sues the city, praised the ruling. “Under Mayor Bloomberg, the Board of Health seemed to feel that its power was unlimited,” Mr. Bookman said. “Now they know they are no different than any other administrative agency.”
Mayor Bill de Blasio, a frequent critic of Mr. Bloomberg but a supporter of the soda proposal, said he was “extremely disappointed” by the ruling. The mayor said he would review other options for the city to combat obesity, but his team did not immediately specify what steps might be taken.
Aides to the mayor said Mr. de Blasio would consider introducing legislation in the Council, the route recommended by the judges. But that approach is not likely to go far: The Council speaker, Melissa Mark-Viverito, opposes the proposal, and she said on Thursday that she was pleased with the court’s decision.
Mr. Bloomberg’s proposal, which polls showed was opposed by a majority of New Yorkers, set off a global debate over soda consumption. It also prompted panic among powerful beverage companies, who feared that their products could be widely branded as a threat to public health.
Questions about the workability of the plan were raised from the start. Because of jurisdictional quirks, not all businesses involved with selling food and beverages would have been affected. The rules would have covered places like fast-food franchises, delis and movie theaters, but convenience stores and grocery markets would have been exempt. And while the limits would have applied to a broad menu of popular drinks, there were many exceptions, including milkshakes, fruit juices and alcoholic beverages.
The soft-drink industry, through lobbying and public-relations campaigns, has helped defeat soda taxes and other regulatory measures in states and municipalities around the country. After Mr. Bloomberg announced his plan in May 2012, the industry poured millions of dollars into an ad campaign that framed the proposal as infringing on consumer freedom. The industry later retained the law firm of Latham & Watkins to challenge the limits in court.
The American Beverage Association, the industry’s trade group, said in a statement that it was “pleased” with the Court of Appeals ruling, saying the proposal “would have created an uneven playing field for thousands of small businesses in the city and limited New Yorkers’ freedom of choice.”