New York Lawyers Ask Appeals Court to Reinstate Bloomberg Soda Ban

New York City lawyers have asked an appeals court to overturn a ruling that invalidated a ban on sodas larger than 16 ounces.

The local health board did not exceed its statutory authority in adopting the prohibition, argued Michael Cardoza, Corporation Counsel for the City of New York, in a brief filed Monday with the New York Supreme Court, Appellate Division, First Department. Cardoza also disputed the ruling from the lower court judge, Milton A. Tingling, Jr., that the "portion cap rule" is "arbitrary and capricious" because it only applies to certain establishments including restaurants.

"Contrary to the Court's reasoning, the purpose of the Rule will not be defeated by the fact that not all soda sellers are subject to the rule," the lawyer wrote. "All food service establishments under the Department's jurisdiction, including fast food chains, are subject to the Rule. This is not an insignificant number."

Tingling, the lower court judge, construed too narrowly the powers of the board of health, which "has legislative authority, and is empowered to issue substantive rules and standards in public health matters" as the courts have recognized for decades, the legal brief argues.

The sugary drinks ban is intended to fight fat in a city where more than half of the adults are either overweight or obese, according to New York City lawyers. "Amicus briefs" have been filed by the National Alliance for Hispanic Health, the National Association of Local Board of Health and dozens of others in support of the controversial measure, which is the brainchild of New York City Mayor Michael Bloomberg.

"Sugary drinks are a leading contributor to the obesity epidemic that is hitting low-income communities especially hard, and we cannot afford to pretend otherwise," Bloomberg said in a statement. "Our plan to limit the portion size of sugary drinks is a sensible step that has won increasing levels of support from the public health community, and these two amicus briefs will help us make our case to the court."

In October 2012, the American Beverage Association (ABA) and several other organizations filed a lawsuit, challenging the soda ban in state court. Critics contended the New York City Board of Health sidestepped legislators under a measure that would burden restaurants, movie theaters and other local businesses.

The organizations who successfully challenged the ban haven't yet filed their brief in the appeals case. Latham & Watkins LLP attorney James Brandt, who represents the ABA, did not immediately respond Thursday to an emailed request for comment on when they would do so.

In an amicus brief, the National Association of Local Board of Health, American Public Health Association and several other groups declared the sugary drink prohibition reflects "a reasoned, incremental response" to an obesity crisis that is within the board of health's legal authority.

"The Portion Cap Rule is reasonably designed to promote reduced consumption of high-calorie, low-nutrient beverages by reducing the default portion size and putting the onus on consumers who wish to consume larger quantities to take affirmative steps to do so," wrote Brian Bromberg, a New York lawyer, on behalf of the organizations.