GULP AWAY! Judge strikes down large-size sugary drink ban

March 11, 2013 By Raanan Geberer Brooklyn Daily Eagle
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A day before it was supposed to take effect, Mayor Bloomberg’s controversial limit on large-size sodas and other sugary beverages was struck down Monday by a Manhattan Supreme Court Judge.

The restriction on such beverages served in containers larger than 16 ounces was supposed to start Tuesday.

The suit had been brought by the Korean-American Grocers Association, the National Restaurant Association, the Statewide Coalition of Hispanic Chambers of Commerce, the Soft Drink and Brewery Workers Union and others who had something to lose from the new Health Department regulation.

Opponents of the plan – among them many elected officials as well as businesspeople – were happy with the ruling, but the Mayor’s Office planned to appeal.

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“I opposed the soda ban based on the fact that it was arbitrary and capricious and overstepped the mayor’s executive powers, and should have been subject to a vote of the City Council or the State Legislature,” Councilwoman Letitia James (D-Fort Greene/Crown Heights), told the Brooklyn Eagle.

William C. Thompson Jr., former Brooklyn deputy borough president, former city comptroller and current Democratic mayoral candidate, said, “Today’s ruling unmasks Mayor Bloomberg’s misguided soda ban policy for what it is: a cosmetic solution to a complex problem. To solve the serious health challenge of our city, we need leadership, not gimmicks.”

In his ruling, Manhattan State Supreme Court Justice Milton Tingling wrote, “The simple reading of the rule leads to the earlier acknowledged uneven enforcement even within a particular city block, much less the city as a whole … the loopholes in this rule effectively defeat the state purpose of the rule.”

Here is a attachment containing the full text of Judge Tingling’s ruling: 

While not disputing the link between large-size sugary beverages and obesity, Justice Tingling, in his opinion, addressed the question of whether a regulatory agency (i.e., the Department of Health) should be promulgating a policy that is the job of a legislative body. He also addressed the powers given to the Department of Health by the City Charter.

Michael Cardozo, the city’s corporation counsel, countered, “We plan to appeal the decision as soon as possible, and we are confident the Board of Health’s decision will ultimately be upheld.

“This measure is part of the city’s multi-pronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year, and we believe the Board of Health has the legal authority – and responsibility – to tackle its leading causes.”

The rule would have prohibited selling non-diet soda and some other sugary beverages in containers bigger than 16 ounces. It would have applied at places ranging from pizzerias to sports stadiums — though not at supermarkets or convenience stores.

Among the criticisms of the law were the fact that whether an establishment fell under the regulation was dependent on how much food was actually prepared there. On one block, one bodega, Dunkin’ Donuts or grocery could fall under the rule, while another would not.

In addition, the ban exempted sugary drinks that were 50 percent or more milk or “milk substitutes,” such as soy. Some of the most fattening drinks – like many lattes — fall into this category.

Movie theater operators also campaigned against the ruling, saying that large families who go to the movies often buy these large-size soda containers to share among several people. In others words, not everyone who buys a 20-ounce container of soda is a solitary, overweight overeater.

“It will be bad for business,” said Brandon Serrano, manager of the Cobble Hill Cinema on Court Street, when interviewed by the Eagle last year. “I think that people should be able to choose what size soda they want. If you think about it, if you can’t sell over 16 ounces, people will just come buy two smaller sodas.”

In general, the regulation, although well-meaning, proved unpopular in Brooklyn.

 “Let me be clear,” said Borough President Marty Markowitz at a hearing earlier this year. “I’m overweight not because I drink Big Gulp sodas, but frankly because I eat too much pasta, pastrami sandwiches, pizza, bagels with cream cheese and lox, red velvet cake and cheesecake.”

Like many others, he urged the Department of Health to meet the obesity problem not with restrictive regulations, but by educational campaigns.

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