Appeals Court Finds Bloomberg's Big Soda Ban Unconstitutional

But leaves "crack in door" for some type of restriction on beverage sizes

Published in CSP Daily News

NEW YORK -- Mayor Michael Bloomberg's attempt to ban big soda in New York City is "staying on ice," reported the Associated Press. A mid-level state appeals court ruled Tuesday that the city's Board of Health exceeded its legal authority when it voted last year to put a size limit on soft drinks served in restaurants, theaters, stadiums, sidewalk food carts and many other places.

Convenience stores that do not serve food would not have been affected by the law.

The ban, which would have stopped the sale of many high-calorie beverages in containers bigger than 16 ounces, had been lauded by some health experts as an overdue attack on one of the primary contributors to a national obesity epidemic.

But in a unanimous opinion, the four-judge panel of the state Supreme Court Appellate Division said that the health board was acting too much like a legislature when it created the limit. It said parts of the new rules were clearly political or economic considerations, rather than health concerns.

The judges wrote that while the board had the power to ban ''inherently harmful'' foodstuffs from being served to the public, sweetened beverages didn't fall into that category. Since soda consumption is not necessarily harmful when done in moderation, it ''cannot be classified as a health hazard per se,'' the court wrote.

Bloomberg, the driving force behind the regulation, promised a quick appeal.

In a statement, he said, "Since New York City's groundbreaking limit on the portion size of sugary beverages was prevented from going into effect on March 12, more than 2,000 New Yorkers have died from the effects of diabetes. Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes--both of which are disproportionately linked to sugary drink consumption. Today's decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic."

Corporation counsel Michael A. Cardozo added, "We firmly disagree with the court's reasoning and will seek to appeal to the Court of Appeals as quickly as possible. There is broad precedent for the Board of Health to adopt significant measures to protect New Yorkers' public health."

The American Beverage Association, which had been among the groups challenging the rule, applauded the court ruling, which was the second to find that the Board of Health had overstepped its authority. A similar lower court ruling in March kept the regulation from taking effect.

''With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City,'' said association spokesperson Christopher Gindlesperger.

The drinks limit follows other Bloomberg efforts to nudge New Yorkers into better diets. His administration has forced chain restaurants to post calorie counts on menus, barred artificial trans fats from restaurant fare and challenged food manufacturers to use less salt.

Bloomberg and city Health Commissioner Thomas Farley saw soft drinks as a sensible next front in a necessary fight: reining in an obesity rate.

''We have a responsibility, as human beings, to do something, to save each other. ... So while other people will wring their hands over the problem of sugary drinks, in New York City, we're doing something about it,'' Bloomberg said at a news conference after the measure was struck down in March.

Critics said the city went too far in imposing a serving-size limit.

''For the first time, this agency is telling the public how much of a safe and lawful beverage it can drink,'' Richard Bress, a lawyer for the coalition of groups that challenged the regulation, told the appeals court at a hearing in June. ''This is the government coercing lifestyle decisions.''

The court's decision focused heavily on one technical area of the law--the separation of powers doctrine--and didn't address whether the regulations would have infringed on personal liberties.

Just like on the federal level, the executive branch New York City's government lacks the authority to create new law. That's the job of the legislative branch, the City Council. The Board of Health does have authority to enact rules that protect the public from germs and diseases, but the court said the city's charter didn't give it ''unfettered'' authority ''with respect to all matters having some relation to the public health.''

Writing for the panel, Justice Dianne T. Renwick did leave a slight crack in the door for some type of restriction on beverage sizes.

Nothing in the decision, she wrote, is intended to ''express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so.''