Eateries from corner delis to movie concession stands have gotten a last-minute reprieve from the nation's first ban on big sugary drinks. But Mayor Bloomberg is urging them to shrink their cups and bottles, anyway.
Hours after a judge struck down the 16-ounce size limit for sodas and some other sweet drinks as arbitrary and outside city health regulators' purview, Bloomberg defended it as a groundbreaking anti-obesity effort and all but challenged businesses to comply out of concern for their customers.
"If you know what you're doing is harmful to people's health, common sense says if you care, you might want to stop doing that," he said.
The city filed papers to appeal the decision Tuesday.
"Despite yesterday's temporary setback, I don't think there's any doubt that momentum is moving in our direction," Bloomberg said Tuesday during a visit to a Manhattan diner that is now voluntarily complying with the policy, ditching 20-ounce bottles of soda and reserving 24-ounce to-go cups for iced coffee.
"We are confident that we will win that (appeal), but while the legal case plays out, the conversation we started about the dangers of the portion sizes of sugary drinks has prompted many people ... to take action," he said.
It was a sign of how aggressively Bloomberg sees the city's role in pushing New Yorkers to improve their health habits and nudging other cities to do likewise. But it remains to be seen whether the city that was first to compel chain restaurants to post calorie counts and bar artificial trans fats in restaurant food will ultimately prevail in capping soda portions.
For now, though, the ruling it means the ax won't fall Tuesday on supersized sodas, sweetened teas and other high-sugar beverages in restaurants, hot dog carts, arenas and even coffee shops.
The rule has sparked reaction from pizzeria counters to late-night talk shows, celebrated by some as a bold attempt to improve people's health and derided by others as another "nanny state" law from Bloomberg during his 11 years in office.
On the "Late Show with David Letterman" Monday night, Bloomberg defended the ban but he also joked about his own "addiction."
"As long as you don't ban Cheez-Its," he said. "Cheez-Its are OK. That's my addiction."
Jose Perez, a special education teacher, said Monday as he got a can of soda and a hot dog from a street vendor, "Really, I think it's just big government getting in the way of people's rights.
"I think it's up to the person," he said. "If they want to have a giant soda, that's their business."
Monday's ruling came just hours before the restriction was to take effect, handing a victory to the beverage industry, restaurants and other business groups that called the rule unfair and wrong-headed.
"The court ruling 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," the American Beverage Association and other opponents said.
State Supreme Court Justice Milton Tingling said the restriction was arbitrary because it applies to only some sugary beverages and some places that sell them. For various reasons, it doesn't cover alcoholic drinks or many lattes and other milk-based concoctions. Nor does it doesn't apply at supermarkets or many convenience stores — including 7-Eleven, home of the Big Gulp.
"The loopholes in this rule effectively defeat the stated purpose," Tingling wrote in a 36-page ruling that examined the scope of power that should be afforded an administrative board for regulations.
Tingling, a Democrat elected to the trial court bench in 2001, said the Bloomberg-appointed Board of Health intruded on the elected City Council's authority when it imposed the rule.
The appeal likely will turn on whether a higher court "feels that the mayor has gone too far in ruling by decree in bypassing City Council," said Rick Hills, a New York University law professor who has been following the case.
In defending the rule, city officials point to the city's rising obesity rate — about 24 percent of adults, up from 18 percent in 2002 — and to studies tying sugary drinks to weight gain.
The judge acknowledged the effect of obesity on the city's residents, and noted that those bringing suit likewise didn't dispute obesity is a significant health issue, but questioned how much sugary drinks can be blamed for it. Ultimately Tingling said whether the issue of obesity is an epidemic is not the key issue here, but whether the board of health has the jurisdiction to decide that obesity is such an issue that it could issue a cap on consumption of sugary drinks.
The judge found that the regulation was "laden with exceptions based on economic and political concern."
Critics said the measure was too limited to have a meaningful effect on New Yorkers' waistlines. And they said it would take a bite out of business for the establishments that had to comply, while others still could sell sugary drinks in 2-liter bottles and supersized cups.
While some eateries held off making changes because of the court challenge, some restaurants had begun using smaller glasses for full-sugar soda. Dunkin' Donuts shops have been telling customers they will have to sweeten and flavor their own coffee. Coca-Cola has printed posters explaining the rules.
Frames Bowling Lounge, a bowling alley and upscale bar in Manhattan, developed — and is keeping — a slate of fresh-squeezed juices as an alternative to pitchers of sodas for family parties. That entailed investing staff time, buying new glasses and changing menus, executive general manager Ayman Kamel said.
"All that cost a lot of money, but you have to go with the flow," he said, and customers have started calling about the new juices.
"We're all very excited about it," he said.