NYC Soda Ban Opponents Weigh in on Appeal

NEW YORKGroups representing beverages, restaurants, local movie theaters and other interests have urged an appeals court to affirm a ruling that invalidated a prohibition on sodas larger than 16 ounces sold in New York City.

"This case is not about obesity in New York City or soft drinks," lawyers for the groups wrote last week in the preliminary statement of an appeals brief filed with the New York Supreme Court, Appellate Division, First Department. "It is about whether the Mayor [Michael Bloomberg] and his Board of Health can usurp the authority of the City Council and decide for themselves what the law should be."

The American Beverage Association, National Restaurant Association and The National Association of Theatre Owners of New York State are among the groups that successfully challenged Bloomberg's planned prohibition on large sugary drinks. In March, a judge enjoined New York City officials from enforcing the ban after finding the health board exceeded its authority and issued an "arbitrary and capricious" regulation because it excluded certain establishments.  

Lawyers for the Big Apple have filed an appeal, contending the judge interpreted too narrowly the health board's authority. But if that position was validated, Bloomberg and his health board would have "unchecked authority to make law on nearly every aspect of human activity because almost everything we do can be said to have 'public health' implications," groups that challenged the ban argued in their brief.

In September 2012, the New York City Board of Health voted to pass the anti-obesity measure, Bloomberg's brainchild. A month later, it was challenged in a 61-page lawsuit.

New York City officials have defended the ban as a rational decision in the fight against fat. More than half of adults in the city are overweight or obese, according to Mark Muschenheim, Assistant Corporation Council for the City of New York. In his March 12 appeals brief, he characterized the soda restriction as "a measured response to a health crisis".