By Joseph Ax
NEW YORK, July 30 New York City Mayor Michael
Bloomberg's controversial plan to keep large sugary drinks out
of restaurants and other eateries was rejected by a state
appeals court on Tuesday, which said he had overstepped his
authority in trying to impose the ban.
The law, which would have prohibited those businesses from
selling sodas and other sugary beverages larger than 16 ounces
(473 ml), "violated the state principle of separation of
powers," the First Department of the state Supreme Court's
Appellate Division said.
The decision, upholding a lower court ruling in March that
struck down the law, dealt a blow to Bloomberg's attempt to
advance the pioneering regulation as a way to combat obesity.
Beverage makers and business groups, however, challenged it in
court, arguing that the mayoral-appointed health board had gone
too far when it approved the law.
A unanimous four-judge panel at the appeals court agreed,
finding that the board had stepped beyond its power to regulate
public health and usurped the policy-making role of the
In particular, the court focused on the law's loopholes,
which exempted businesses not under the auspices of the city's
health department and left certain drinks, such as milk-based
As a result, grocery and convenience stores - such as 7
Eleven and its 64-ounce Big Gulp - were protected from the ban's
reach, even as restaurants, sandwich shops and movie theaters
were not. Meanwhile, milkshakes and high-calorie coffee drinks
like Starbucks' Frappucinos would have remained
"The exceptions did not ... reflect the agency's charge to
protect public health but instead reflected the agency's own
policy decisions regarding balancing the relative importance of
protecting public health with ensuring the economic viability of
certain industries," Justice Dianne Renwick wrote for the court.
In a statement, Bloomberg said the decision was a "temporary
setback" and vowed to appeal to the state's highest court, the
Court of Appeals. If the court declines to hear the city's
appeal, the case would come to an end.
Bloomberg also said that more than 2,000 New Yorkers had
died from diabetes since March 12, when the law was struck down
just one day before it was to take effect.
The proposed ban, the first of its kind, drew national
attention, as public health advocates praised the plan while
critics decried Bloomberg for trying to create a "nanny state."
A spokesman for the American Beverage Association, an
industry group that served as the lead plaintiff in challenging
the law, said, "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."
VICTORY FOR DRINK MAKERS
During his three terms, Bloomberg has made public health a
signature issue, prohibiting smoking in restaurants, bars and
parks; banning trans fats; and requiring chain restaurants to
post calorie counts.
He is set to leave office at year's end, and it remains
unclear whether his successor will take up the sugary soda
issue. City Council President Christine Quinn, a leading
Democratic candidate, opposed the ban, while Public Advocate
Bill de Blasio, another Democratic candidate, said he supports
Other Democratic candidates, including William Thompson Jr
and Anthony Weiner, did not immediately respond to requests for
In its decision, the appeals court emphasized that it was
not expressing an opinion on the "wisdom" of regulations
curtailing large sodas, "provided that they are enacted by the
government body with the authority to do so."
Asked whether Bloomberg might now seek to pass legislation
through the City Council, a mayoral spokeswoman said, "The route
that we have gone is through the Board of Health."
The ruling is a victory for companies like Coca-Cola,
PepsiCo and Dr Pepper Snapple, which argued that
the law would do little to address obesity while imposing
unnecessary costs. The restaurant industry and several business
groups also had filed papers in support of the lawsuit.
State Supreme Court Justice Milton Tingling struck down the
law in March. At the time, Bloomberg said the ruling was
"totally in error" and expressed confidence that the city would
prevail on appeal.