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Queens Chronicle

‘Soda ban’ prompts lawsuit against New York City

Soda industry files lawsuit against 16-oz. size limit for sweet drinks

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Posted: Thursday, October 18, 2012 10:30 am | Updated: 11:30 am, Thu Oct 25, 2012.

The large-size soda ban passed last month by the city has been controversial to say the least, but none have opposed it more openly than the coalition of national and New York businesses and groups that have sued the city and claim the regulation is “unconstitutional.”

The group, which includes members such as the American Beverage Association and the New York Korean-American Grocers Association, will try to overturn the law based on one of two reasons — either by asserting that the city Board of Health is overstepping its boundaries of power, or by calling the law a violation of the U.S. Constitution’s separation of powers, in which Congress is accorded the responsibility to regulate interstate trade.

The “soda ban” takes aim at any business in New York that receives a letter health grade from the city Department of Health by not allowing it to sell any sugary drink in single quantities greater than 16 ounces. However, consumers would still get to buy as many refills as they choose to.

The ban is the latest in a line of measures that Mayor Bloomberg has tried to use to curb soda consumption and obesity in New York. Those have included a failed attempt to prohibit the purchase of soda with food stamps in 2011 and a proposed soda tax.

The mayor, who was able to pass the regulation easily because he appoints members to the Board of Health, argues that limiting New Yorkers’ sugar intake will decrease obesity. He told MSNBC that customers still have the option of ordering two or more cups and drinking whatever quantity of soda they wanted. “We’re not taking away anybody’s right to do things. We’re simply forcing you to understand that you have to make the conscious decision to go from one cup to another cup,” he said.

Councilman Dan Halloran (D-Whitestone), a vocal opponent of the health regulation, clarified some of the complaints he has with it this week. “Any place not subject to the Health Department’s rating system is not subject to the law. It’s an unequal application problem, which is a big legal impediment,” he said.

The advocacy group New Yorkers for Beverage Choices said in a press release, “By imposing this ban, the board has shown no regard for public opinion or the consequences to businesses in the city,” citing a recent New York Times poll which indicates that 60 percent of New Yorkers disagree with the ban.

Liz Berman, chairwoman of the NYBC, said in a press statement, “We aren’t jumping out of the way just because the Board of Health rubber-stamped the mayor’s ban on soft drinks. In growing numbers, New Yorkers are standing up for small businesses in the city that will be harmed by this arbitrary policy that puts them at a competitive disadvantage.”

“If you’re 7-Eleven, if you’re Walbaum’s or ShopRite, you’re not covered by this,” Halloran explained. “Big-box retailer types will still get to sell big sodas. Mom-and-pop pizza places won’t be able to sell the large sodas. When you talk about their profit margins, sometimes that large drink makes the difference.

“The government has specific roles, and that’s not one of them,” Halloran continued. “If they can do that, can they regulate other things? Will you not be able to sell a quarter-pounder with two patties because of the calorie count?”

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