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Queens Chronicle

City soda ban fizzles out

Court of Appeals dumps failed rule down drain

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Posted: Thursday, July 3, 2014 10:30 am

The New York Court of Appeals upheld a lower court decision that the Bloomberg administration exceeded its authority by passing a ban on large sugary beverages in 2012 last Thursday.

The Portion Cap Rule spearheaded by former Mayor Bloomberg and supported by current Mayor de Blasio states that certain food establishments may not sell, offer or provide a sugary drink in a cup or container that can contain more than 16 fluid ounces.

“We hold that the New York City Board of Health, in adopting the ‘Sugary Drinks Portion Cap Rule,’ exceeded the scope of its regulatory authority,” Justice Eugene Pigott wrote in the final decision. “By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York.”

Health Commissioner Mary Basset said she would continue to fight against sugary drinks that she said propel obesity but the ruling is likely the final nail in the coffin for the controversial policy that had many convenience store, bodega and delicatessen owners and employees up in arms.

Among the objections was that the Portion Cap Rule would only affect certain stores.

Most notably, 7-Eleven, which falls under different regulations than many bodegas, would not be forced to eliminate the large soda serving size.

De Blasio expressed his disappointment in the court’s decision in a written statement.

“We are extremely disappointed by today’s Court decision that prevents the city from implementing a sugary drink portion cap policy,” he wrote. “The negative effects of sugary drink over-consumption on New Yorkers’ health, particularly among low-income communities, are irrefutable.

“We cannot turn our backs on the high rates of obesity and diabetes that adversely impact the lives of so many of our residents.

“While we are still examining the Court’s decision, it is our responsibility to address the causes of this epidemic, and the City is actively reviewing all of its options to protect the health and well-being of our communities.”

The ruling was passed 4-2 and dissenting judges said it would interfere with the Board of Health’s ability to deal with public health threats.

“While my colleagues in the majority may be troubled by this state of affairs, it is not their proper role to change it,” Justice Susan Read wrote. “The elected state Legislature granted the Board the powers that it exercises.

“If the electorate of the City of New York desires to divest the Board of authority to act independently of the Council in matters of public health, the appropriate and democratic response is amendment of the City Charter.”

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