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Queens Chronicle

Mayor Bloomberg's big-soda ban struck down in court

One day before 16-ounce limit was to take effect

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Posted: Monday, March 11, 2013 7:02 pm | Updated: 7:20 pm, Mon Mar 11, 2013.

The city's planned prohibition on sugary drinks larger than 16 ounces in venues it regulates was blocked in court Monday — the day before it was to take effect.

State Supreme Court Justice Milton Tingling, ruling in an industry lawsuit challenging the executive branch rule, determined that the city Board of Health had no authority to "limit or ban a legal item under the guise of 'controlling chronic disease,'" according to published reports, saying that only the City Council could do that.

Tingling also determined that the ban was arbitrary and capricious. One aspect critics have pointed to is that it only would apply to businesses regulated by the city, such as independent bodegas, while others regulated by the state, such as 7-Eleven — known for its oversized Big Gulps — would be exempt.

“The simple reading of the Rule leads to … uneven enforcement even within a particular city block," Tingling said in his ruling, according to the Washington Post.

Mayor Bloomberg said the city would appeal and said the Board of Health has a long history of being first with restrictions that eventually are adopted all over the nation. In a press conference he said sweetened drinks such as cola are known to be a cause of obesity, and that the city must act for the good of its people.“We have a responsibility as human beings to do something, to save each other, to save the lives of ourselves, our families, our friends, and all of the rest of the people that live on God’s planet," the mayor said. "And so while other people will wring their hands over the problem of sugary drinks, in New York City, we’re doing something about it."

He noted that historically servings of soda were much smaller, steadily growing over time, and added that people could still drink as much as they want under the ban; they would just have to get more cups.

“We believe it’s reasonable to draw a line – and it’s responsible to draw a line right now," he continued. "With so many people contracting diabetes and heart disease, with so many children who are overweight and obese, with so many poor neighborhoods suffering the worst of this epidemic, we believe it is reasonable and responsible to draw a line – and that is what the Board of Health has done. As a matter of fact, it would be irresponsible not to try to do everything we can to save lives."

Opponents of the ban, such as City Councilman Dan Halloran (R-Whitestone), applauded the ruling.

“I have publicly opposed this ban since it was introduced, for exactly the reasons stated in today’s ruling," Halloran said in a prepared statement. "The effect would be, as Judge Tingling said, arbitrary and capricious."

Adding that the ban would have been a burden on small businesses, Halloran said he would work with his colleagues in the City Council "to make sure a lwa like this never passes again."

Halloran spokesman Kevin Ryan added that the councilman contends the rule would be unconstitutional, and said, "The ruling correctly striking down the soda ban mirrors exactly what the council member has been saying from the beginning, including just a few hours before the ruling came out: its effect would be disproportionate. He was right. The soda ban left the judge flat.”

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