NYC Soda Ban Challenge Moves to Appeals Court

NEW YORK CITYMichael Bloomberg, the Big Apple's mayor, isn't giving up on his plan to ban sodas that are larger than 16 ounces in certain establishments.

New York City lawyers on Tuesday filed a notice of appeal to challenge a court decision that declared the sugary drinks ban is invalid, and the Appellate Division of the New York State Supreme Court, First Department, has agreed to hear the case during the first week of June, Reuters reported.

In a notice of appeal, New York City lawyers wrote the decision by Judge Milton A. Tingling, Jr. was "contrary to law." A spokeswoman for the New York City Law Department didn't immediately respond Thursday to a request for comment.

One day before it was scheduled to take effect, Tingling declared the ban invalid and enjoined New York City officials from enforcing it. In striking down the regulation, the judge relied heavily on a case from 1987 that involved a challenge to the Public Health Council's declaration of an antismoking code: Boreali vs. Axelrod. In that case, the New York appeals court found the health council overstepped its authority when it issued a code to govern tobacco smoking in public areas. (New York City lawyers contend Boreali is inapplicable because the health board is a "quasi legislative body uniquely charged with enacting laws protecting the public health in New York City").

In applying factors that were laid out in Boreali, Tingling found the soda ban was impermissibly based on economic and political concerns, exceeds the authority of the health department, and invaded the legislature's province. The regulation also was declared to be "arbitrary and capricious" because, in part, it excluded certain businesses from the prohibition on large sodas. 

Some critics already have found flaws in Tingling's reasoning.

"Consider one of the judge's major arguments: balancing public health and economic considerations is 'impermissible.' This judicial reasoning makes no sense," wrote Lawrence O. Gostin, a professor and director of the O'Neil Institute for National and Global Health Law at Georgetown University, in a Special to CNN. "If policy makers could not balance economic consequences, virtually every law in America would be flawed."

In September 2012, New York City's Board of Health (within the Department of Health and Mental Hygiene) voted to enact the ban in the growing fight against obesity. Complications from being overweight or obese are linked to more than 5,000 deaths each year in New York, Mark Muschenheim, Assistant Corporation Counsel for the City of New York, wrote in court papers.

"A leading cause of this epidemic is sugary drinks which contain almost no nutritional value and are the largest source of added sugars in the diet," Muschenheim wrote. "In fact, the New York City neighborhoods with the highest rate of obesity also have the highest rate of sugary drink consumption."

The American Beverage Association (ABA), National Restaurant Association and other plaintiffs challenging the ban contend it would be onerous. For instance, it 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, said ABA's attorney James Brandt of Latham & Watkins, LLP.