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Queens Chronicle

City officials want to vote on soda ban

Is Mayor Bloomberg’s plan legal?

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Posted: Thursday, June 14, 2012 10:30 am | Updated: 11:01 am, Thu Jun 21, 2012.

Fourteen City Council members, including three in Queens, have asked Mayor Bloomberg to let them decide on his proposed ban on sugary drinks.

The ban would restrict drink sizes to 16 ounces in all city-graded delis, food carts, restaurants, theaters and stadiums. It would also only need approval from the members of the Board of Health, whom the mayor appoints.

Councilman Leroy Comrie (D-St. Albans) signed the letter that Councilman Dan Halloran (R-Whitestone) wrote to Bloomberg opposing the ban. Comrie said he just does not want the bill to solely go through the Department of Health.

When asked if he is considering a lawsuit against the mayor, he said, “Not at this time. We are a legislative body — we don’t automatically go to lawsuits for that.”

Councilwoman Karen Koslowitz (D-Forest Hills), who also signed Halloran’s letter, said she would like to see the residents weigh in on the ban since it is a consumer issue.

But when asked if she thinks Bloomberg is going through the process of getting the bill passed legally, Koslowitz said, “I don’t know legally — but I think it’s not the right thing to do. I think it’s up to the individual to deal with it [obesity].”

Councilman Peter Vallone Jr. (D-Astoria), who authored the city’s ban on trans fats in food like french fries, said, “It’s a tough issue for me” and wouldn’t take a solid position. He said it would be better for the council to pass a law banning oversized drinks than for the Board of Health to act, but added that the issue is not a top concern.

A spokesman for the American Beverage Association said the industry opposes the ban but wouldn’t say if the ABA would take any action.

“We’re examining all options, and evaluating the legality of this proposal is one of those options,” the spokesman said in an email. “But at this point, it’s too early to detail anything further.”

Ruthann Robson, a constitutional law professor at CUNY School of Law in Long Island City, said the city seems to have the power under the state Constitution to make such a ban.

“Most of the constitutional issues raised are related to individual liberty: people wonder whether the government can ‘tell them’ the size that drinks should be,” Robson said in an email. “But of course, governments pass all sorts of regulations regarding food and other consumption items.”

Some regulations already enforced by the government include that of liquor, tobacco, drugs and pharmaceutical products. The city also grades food establishments.

Robson said as long as the law would not protect local businesses or interfere with federal laws and regulations, the mandate can be approved.

Enforcement of this ban would not be a First Amendment issue because it is not a “labeling or disclosure requirement, such as the listing of calories on menus,” Robson said.

Some may argue that the ban would create an unfair advantage for state-regulated businesses, like 7-Eleven, which would still be able to sell sugary beverages that are more than 16 ounces, giving those stores unequal protection under the law.

But Robson said, “It would probably not be sufficient to raise an equal protection claim because as I understand it, the city does not have power to regulate those state-regulated stores.”

She said she is not completely certain if council members have any legal basis to request a vote on the bill, which would depend on the City Charter.

“People who disagree with the sugary drink regulation would have a better chance pursuing their objections in the political process rather than by constitutional claims in the courts,” Robson said.

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