The city's plan to ban the sale of soda and other sugary drinks in containers larger than 16 ounces in certain establishments is indeed a case of executive branch overreach, the state Supreme Court Appellate Division ruled Tuesday.
The decision upholds the March findings of state Supreme Court Justice Milton Tingling, who ruled in a suit brought by business associations that the prohibition is arbitrary and capricious and that the city Board of Health has no authority to "limit or ban a legal item under the guise of 'controlling chronic disease,'" and only the City Council could do that.
The city plans to appeal the Appellate Division's ruling to the Court of Appeals, the state's highest.
Prodded by Mayor Bloomberg, the Board of Health had passed a rule barring establishments the city regulates from selling sugary drinks larger than 16 ounces starting March 12. That would include independent grocers but exempt stores including 7-Eleven that are state-regulated because they don't prepare food on the premises.
“The simple reading of the Rule leads to … uneven enforcement even within a particular city block," Tingling said in his ruling, which prevented the regulation from taking effect.
Bloomberg's goal was to fight obesity and the health conditions it can lead to.
"Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12, more than 2,000 New Yorkers have died from the effects of diabetes," the mayor said in a prepared statement after the Appellate Division let Tingling's decision stand. "Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes — both of which are disproportionately linked to sugary drink consumption. Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic.”
The lawsuit was brought by the group of business organizations led by the New York Statewide Coalition of Hispanic Chambers of Commerce and including the U.S. Chamber of Commerce, which argued that the rule "is a reckless, ill-conceived, top-down regulation that has little change of meaningfully affecting the city's purported health objectives. "
Following the Appellate Division's ruling, the American Beverage Association said in a statement, “We are pleased that the lower court’s decision was upheld. 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.”
Several elected officials, including City Councilman Leroy Comrie (D-St. Albans), leader of the Queens delegation, had argued against the ban, saying it would have a negative impact on small businesses.