Judge Saves Big Drinks in Big Apple

Published March 11, 2013


A ban on large sugared drinks that was to take effect in New York City on March 12 was struck down by a Manhattan state Supreme Court Justice on March 11.

Justice Milton Tingling agreed with the beverage industry and business owners who objected the ban was “arbitrary and capricious.” The ban had been promoted by billionaire media mogul and New York City Mayor Michael Bloomberg. A city health board appointed by the mayor approved the ban last year.

It would have limited the size of sugared drinks that could be sold to 16 fluid ounces, but only at certain establishments. Sodas and many other sugared drinks, including smoothies and coffee, were included in the ban. But Tingling noted what was not included. Sugary milk products such as milk shakes were exempted, as were large drinks sold at convenience stores. This, he wrote, was evidence of the ban’s arbitrariness and capriciousness.

‘Loopholes Defeat Purpose’

“The loopholes in this rule effectively defeat the stated purpose of this rule,” Justice Tingling wrote. He added that setting a size limit would have been the proper purview of the elected City Council, not the appointed health board.

Various business groups, including soft drink makers, restaurateurs, and movie theater owners, sued over the ban, and last month Justice Tingling heard the case. Plaintiffs argued soft drink makers would be forced to change bottles and labels, restaurants and delis would have to change menus and inventories, and movie theaters would lose profits, 20 percent of which come from soft drink sales.

“These are costs which these businesses are not going to be compensated for,” argued James E. Brandt, a lawyer for the American Beverage Association and other opponents, during his presentation before Justice Tingling.

“The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban,” said the American Beverage Association in a statement. “With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City.”

Appeal Likely

Bloomberg and his hand-picked health board said they wanted the ban to fight obesity and reduce obesity-related health problems. City officials pledged to appeal the ruling.

“This measure is part of the city’s multi-pronged effort to combat the growing obesity epidemic,” Michael Cardozo, corporate counsel for the city’s law department, said in a statement. “We believe the Board of Health has the legal authority — and responsibility — to tackle its leading causes.”