Judge Kills New York City Soda Ban, Appeal Coming

NEW YORK CITYA state judge has enjoined New York City officials from enforcing a ban that was set to take effect tomorrow on large sugary drinks after finding the board of health exceeded its authority and issued a regulation that is "arbitrary and capricious".

The New York City Law Department plans to appeal the ruling, creating further uncertainty for a food and beverage industry that challenged the regulation.

The regulation is impermissibly based on economic and political concerns, exceeds the authority of the health department, and invaded the legislature's province, Judge Milton A. Tingling, Jr. of the Supreme Court of New York wrote in a 36-page ruling.

The judge also found the controversial ban to be arbitrary and capricious, in part, because it excludes certain businesses.

"It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to limitations on re-fills, defeat and/or serve to gut the purpose of the rule," Tingling wrote.

The ruling represents a defeat for New York City Mayor Michael Bloomberg, who had sought to ban sugary drinks that are larger than 16 ounces in the fight against obesity. But New York City officials aren't giving up.

"We plan to appeal the decision as soon as possible, and we are confident the Board of Healths decision will ultimately be upheld," Michael Cardozo, Corporation Counsel with the New York City Law Department, said in a statement emailed to media outlets. "This measure is part of the Citys multi-pronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year, and we believe the Board of Health has the legal authority and responsibility to tackle its leading causes."

Opponents of the ban, including the American Beverage Association, contend it is an onerous regulation.

This is a great victory, particularly for thousands of restaurant operators and industry suppliers serving New York City who would have experienced financial hardships had the ban been enacted, said Dawn Sweeney, President and CEO of the National Restaurant Association, which was one of the plaintiffs challenging the ban, in a statement. We are extremely pleased that the judge recognized that the Board of Health exceeded its authority when it initially passed the ban.

In September, the New York City Board of Health voted to pass the anti-obesity measure, Bloomberg's brainchild. The measure was challenged the next month in a 61-page lawsuit filed against the New York City Department of Health and Mental Hygiene, the New York City Board of Health and Dr. Thomas Farley in his official capacity as Commissioner of the health department.

"Obesity is a real problem," said Jeff Stier, director of the Risk Analysis Division of the National Center for Public Policy Research, "but a random ban like the Mayor's, which was widely ridiculed not only by late-night comedy shows, but by a New York judge, is not a serious way to address a serious issue."