Judge Bans Bloomberg's Ban On Large Sodas

by Thom Forbes, Mar 12, 2013, 7:56 AM

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In what the New York Times characterizes as “an unusually critical opinion” and the Wall Street Journal calls “a stinging blow,” a New York Supreme Court judge found yesterday that New York City Mayor Michael Bloomberg’s ban on containers that hold more than 16 ounces of sugary beverages doesn’t hold water. 

Justice Milton A. Tingling Jr. “called the limits ‘arbitrary and capricious,’ echoing the complaints of city business owners and consumers who had deemed the rules unworkable and unenforceable, with confusing loopholes and voluminous exemptions,” writes Michael M. Grynbaum in a story that leads the Times. 

The judge “determined that Mr. Bloomberg exceeded his authority by sidestepping the City Council and placing the issue before the city’s Board of Health, a panel whose members were each appointed by the mayor,” Stephen Miller writes in the WSJ, followed by a quote from Rick Hills, a law professor at New York University: “There’s a sense that Bloomberg has an imperial disdain for the City Council, and this ruling says ‘no more rule by mayoral decree.’” 

The mayor, saying it would be “irresponsible” to not do otherwise, immediately promised to appeal the decision in a press conference that had its own colorful and strident language. “I’ve got to defend my children, and yours, and do what’s right to save lives,” he says. “Obesity kills. There’s no question it kills.”

Although few dispute that obesity kills, the beverage industry, eateries, weenie vendors and a majority of imbibing consumers (according to polls) and poll-watching politicians running to succeed Bloomberg have argued that the restriction on soda is heavy-handed, arbitrary, over-the top and/or illegal. Observers yesterday were predictably all over the map on whether they are correct.

“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 said in a statement. “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.”

Indeed, “the ruling means the ax won’t fall [today] on supersized sodas, sweetened teas and other high-sugar beverages in restaurants, hot dog carts, arenas and even coffee shops,” the AP reports. But that doesn’t mean that it won’t in the future.

“Ross Sandler, a professor at New York Law School, said city laws deemed ‘arbitrary and capricious’ had frequently been reinstated upon appeal,’” observes the Times’ Grynbaum. 

“The ruling could backfire if it convinces municipalities that the only way to reduce soda consumption is through higher taxes,” Reuters’ Joseph Ax writes after talking to industry consultant Tom Pirko of Bevmark.

“What the industry is very worried about is not measures like Bloomberg’s, which is local and easy to walk around,” Pirko says. “What they’re worried about is taxes.” 

The suit was brought by a diverse assemblage: the New York Statewide Coalition of Hispanic Chambers of Commerce, the New York Korean-American Grocers Association, the Soft Drink and Brewery Workers Union Local 812, the International Brotherhood of Teamsters, the National Restaurant Association, the National Association of Theatre Owners of New York State and the American Beverage Association, Laura Petrecca reports in USA Today. 

“Anytime you adopt a groundbreaking policy, special interests will sue,” Bloomberg said yesterday. “That’s America.”

What goes down, or up, in the Big Apple is often a harbinger for national trends, of course. 

“Many of the measures adopted in New York have become models for other cities, such as restrictions on smoking and trans fats and the requirement that restaurants post calorie counts next to prices,” Natalie Zmuda points out in Ad Age. “Board of Health members had hoped the ban on large, sugary drinks would also become a model for other cities.”

Showing that he has a sense of humor beneath his scrappy personality, Bloomberg indicated to David Letterman last night that although 70,000 people in the U.S. will die from obesity this year –- and it’s “the first time in the history of the world that more people will die from overeating than under-eating” -- he does realize that government can go too far in its efforts to protect its citizens.

“As long as you don’t ban Cheez-Its,” he said. “Cheez-Its are okay. That’s my addiction.”

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