New York Soda Ban is Unlawful, Appeals Court Rules

NEW YORK CITYA panel of four appeals judges on Tuesday affirmed a decision invalidating a controversial ban on sugary drinks that are larger than 16 ounces.

The "portion cap rule" imposed last year by the New York City Board of Health violated "the principle of separation of powers", the appeals court ruled. The judges found the health board exceeded its authority as an administrative agency, unlawfully assuming the legislative power of the city council. The appeals court relied on a 1989 court decision (Boreali v. Axelrod), which found an administrative body (Public Health Council) overstepped its authority by imposing smoking prohibitions in public facilities.

The proposed soda ban "is one especially suited for legislative determination as it involves 'difficult social problems' which must be resolved by 'making choices among competing ends,'" Associate Justice Dianne Renwick of the New York State Supreme Court, Appellate Division, First Department, wrote, quoting the Boreali decision.

The appeals court did not rule on whether the regulation was "arbitrary and capricious", which a judge previously held was in fact the case because it excludes certain businesses.

The brainchild of New York City Mayor Michael Bloomberg, the soda restriction was proposed to fight obesity. But the city council did not get a chance to vote on the proposal despite a request by 14 members of the legislative body to do so. Instead, the health board adopted the regulation in September 2012.

A lawyer for the city vowed to appeal the latest court decision.