NYC Lawyers Oppose Delaying Soda Ban

By Josh Long

NEW YORK CITYThe New York City Law Department opposes a request to delay the effective date of a controversial ban on large sodas that is scheduled to take effect next month.

The American Beverage Association, National Restaurant Association and a number of New York organizations challenging the ban in state court have asked a judge to enjoin state officials from enforcing the measure until he rules on whether it is lawful.

"We plan to oppose this motion and anticipate that we will prevail," Mark Muschenheim, Senior Counsel of the New York City Law Department's Administrative Law Division, said in a statement. "The obesity epidemic kills nearly 6,000 New Yorkers each year. We see no reason to delay the Board of Health's reasonable and legal actions to combat this major, growing problem."

In documents filed with the Supreme Court of the State of New York, plaintiffs contend the measure will cause "irreparable harm" and that equity weighs in favor of delaying its effective date.

"There can be no health-based reason to rush to enforcement when every convenience store, grocery store, market, and gas station in New York City will be allowed to continue selling beverages in any size, such that thousands of alternative locations will remain available for individuals to obtain the beverages they want in the size they want, including containers greater than 16 ounces," wrote Latham & Watkins, LLP attorney James Brandt, who is representing the American Beverage Association in the lawsuit. 

Brandt said the ban scheduled to take effect on March 12 will potentially result in lost sales while requiring businesses to discard inventory, invest in new products and develop new advertising materials such as revised drink menus at restaurants.  The measure could eat into movie theater concession revenues, forcing New York City theaters to lay off employees, cut employee benefits or raise ticket prices, Robert Sunshine, Executive Director of the National Association of Theatre Owners of New York State, said in court papers.

The health department doesn't plan to impose fines for the first three months after the ban takes effect. But plaintiffs including the American Beverage Association (ABA) emphasize that doesn't release them from the heavy burdens of complying with the measure. Mike Redman of the ABA pointed out many popular beverages including Powerade are produced in 20-ounce bottles in excess of the 16-ounce limit. One ABA member estimated it would cost $600,000 in labeling and other expenses to comply with the ban, Redman, ABA's Vice President of Scientific, Technical & Regulatory Affairs, said in court documents.

Immediate enforcement of the ban is unjustified considering thousands of other businesses will be allowed to sell beverages exceeding 16 ounces, Brandt said.

Plaintiffs have a "decent chance" of prevailing on their request to delay the ban's effective date "when you consider how many years these products have been sold and the absence of evidence that harm is immediate," said New York-based food and beverage attorney Marc Ullman, who is not involved in the litigation and cautioned he hadn't read the court documents.

In September, the New York City Board of Health voted to pass the anti-obesity measure, the brainchild of Mayor Michael Bloomberg. 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.

Plaintiff alleged the New York City Board of Health usurped the rule of the City Council and lacked authority to issue a rule that prohibits certain businesses from selling sugar-sweetened beverages that are larger than 16 ounces.

New York City officials have defended the ban as being rational, citing the need to protect the health of New Yorkers.

"More specifically, this record established that there is an obesity epidemic among New York City residents with more than half of New York City adults being obese or overweight and more than 20 percent of the City's public school children being obese," Michael Cardoza, Corporation Counsel for the City of New York, said in court papers filed in November.

The lawsuit is before Justice Milton A. Tingling, Jr.