Drink Up: Judge Strikes Down NYC's Large Soda Ban

Tuesday, Mar 12, 2013  |  Updated 7:40 AM EDT
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On Monday, a judge tossed out New York City's ban on big sugary drinks just hours before it was supposed to take effect. Mayor Bloomberg says the city will appeal the ruling. Pei-Sze Cheng reports.

NBC 4 New York

On Monday, a judge tossed out New York City's ban on big sugary drinks just hours before it was supposed to take effect. Mayor Bloomberg says the city will appeal the ruling. Pei-Sze Cheng reports.

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A judge struck down New York City's size limit on sodas and other sugary drinks a day before it was set to take effect, ruling that Mayor Bloomberg's administration went too far in assuming what the Board of Health could do.

State Supreme Court Justice Milton Tingling ruled Monday that the law challenged by the American Beverage Association was invalid, saying the city took to "new heights" its interpretation of the Board of Health's limits. 

The rule, the judge said, "would create an administrative Leviathan and violate the separation of powers doctrine... Such an evisceration has the potential to be more troubling that sugar-sweetened beverages."

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The Board of Health, which is essentially controlled by Bloomberg, had moved in September to ban restaurants, delis, movie theaters and many other eateries from selling high-sugar drinks in cups or containers bigger than 16 ounces. The city planned to start enforcing the rule Tuesday but was to postpone seeking $200 fines until June.

In a press conference, Bloomberg said the city will appeal the judge's ruling, saying Tingling's decision is "clearly in error." 

Citing studies that suggest sugary drinks are a driving factor in the nation's growing girth, city officials had portrayed the law as a portion-control tactic that would help people cut calories without stopping anyone who actively wants more soda from buying another.

Opponents said it was insulting to suggest consumers don't know what they're doing, and that it was unfair to impose a restriction that applies only to some beverages and some establishments.

The rule didn't cover alcoholic drinks, milkshakes, coffee drinks or unsweetened juices, because of various factors, including limits on the city's jurisdiction. Nor did it apply to any sugary drinks sold at supermarkets or convenience stores — including the 7-Eleven Big Gulp.

Those exceptions made the rule "arbitrary and capricious," the judge wrote in the ruling.

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"It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the rule ... defeat and/or serve to gut the purpose of the rule," he wrote.

The American Beverage Association said in a statement that the judge's decision "provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban."

Some New Yorkers agreed that the rule was misguided.

"The whole law seemed silly," said Sheena LaShay, of Brooklyn. "We should focus on educating people how to eat well."

"If people don't want to be healthier, it's their prerogative," said Maria Diaz, of the Bronx.

Andrew Siff contributed to this story

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