Gulp! Bloomberg's Large Soda Ban Fizzles

By Jill Colvin on March 11, 2013 3:31pm | Updated on March 11, 2013 7:40pm

NEW YORK — Mayor Michael Bloomberg's controversial ban on large sodas has gone flat.

A state judge ruled Monday that the ban on sales of sugary drinks larger than 16 ounces is unconstitutional, as well as "arbitrary and capricious," one day before the hotly debated measure was set to go in effect.

New York Supreme Court Justice Milton Tingling said that the city had overstepped it bounds when it imposed the measure, which would have barred all restaurants, fast-food joints, movie theaters and sports stadiums regulated by the city's Health Department from selling sweetened drinks in cups larger than 16 ounces.

Tinging's 37-page ruling, which Bloomberg vowed to appeal, came in response to a lawsuit filed by representatives of the soft drink and restaurant industry, who had complained that the regulations were arbitrary and unfair.

The judge agreed, noting that the many loopholes in the law "effectively defeat[ed]" its purpose, and he expressed concern over the "virtually limitless" authority it gave the city's Health Department in making policy decisions.

"The portion cap rule," Tingling wrote, "would create an administrative Leviathan.... The rule would not only violate the separation of powers, it would eviscerate [it].... Such an evisceration has the potential to be more troubling than sugar sweetened beverages."

The American Beverage Association, the National Restaurant Association and other plaintiffs praised the ruling, saying it "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."

But Bloomberg ardently defended the plan, which he argued was a matter of life and death in a country where he said 70,000 people will die of obesity this year.

"It's not enough to talk and it's not enough to have hope. We have a responsibility to do something, to save each other," Bloomberg said at a hastily called press conference at City Hall late Monday afternoon. "We believe that it's reasonable to draw a line and draw a line right now."

 A state judge knocked down Mayor Michael Bloomberg's ban on large sugary drinks.
A state judge knocked down Mayor Michael Bloomberg's ban on large sugary drinks.
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DNAinfo/Janet Upadhye

Bloomberg and the city's chief counsel say the city has every right to regulate cup sizes, and they expressed confidence that the court's decision would be overturned.

In the meantime, Bloomberg urged restaurants to voluntarily adopt the ban, even though the city will not begin enforcing it in June, as had been planned.

"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," Bloomberg said.

Another way of moving the ban forward would be for the City Council to adopt it. In his ruling, Justice Tingling suggested that the City Council has more legal authority than the Health Department to approve such sweeping rules on sugary drinks. 

However, Council Speaker Christine Quinn has no plans to help the mayor by taking up one of his major crusades.

"Speaker Quinn has expressed opposition to the proposed soda ban in the past," a spokesman for Quinn said in a statement Monday. "The Council is reviewing the court's opinion and will wait for the legal process to conclude."

Before the judge's ruling, many restaurants across the city had begun preparing for the ban, with restaurant owners shopping for smaller drink containers and working to adjust their menus. Dunkin' Donuts locations across the city had posted instructions around their stores detailing what was and wasn't banned.

DNAinfo Twitter readers sounded off with their favorite soda ban puns moments after the decision was announced.

At a Dunkin' Donuts near City Hall, staff members were thrilled to learn Monday afternoon the complicated rules would no longer go into effect.

"I don't think any city official or the mayor should tell you what you should drink," said Jackie Goode, who lives in Fort Greene and works in security. "It's up to the individual and their doctor."

Dunkin' Donuts' corporate office also voiced support for the judge's decision, saying it's important for consumers to have choices and that the ban would have hurt the company's franchisees during a difficult economy.

"We have maintained our position from the beginning that any regulations to eliminate New Yorkers’ rights to purchase beverages in sizes of their choice is not in the public’s interest," Michelle King, director of global public relations at Dunkin' Brands, said in a statement.

But outside a McDonald's on Flatbush Avenue in Brooklyn 25-year-old Mecca Wade and her husband were split on the ban.

"I think [Bloomberg is] trying to improve quality of life," said Wade, who had just bought a 16-ounce milkshake at the McDonald's. "We do have an obesity issue. If there's less options, people will make better choices."

Milkshakes would have been exempt under the container size limitations because they contain more than 50 percent milk — just one of a long list of quirks that critics had panned.

Wade's husband, Charles Wade, 31, said he was happy the ban was overturned.

"I despise Bloomberg for it," he said. "I can make my own choices."

With reporting by Ben Fractenberg and Julie Shapiro

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