Judge strikes down NYC ban on supersized sodas

Published on NewsOK Modified: March 11, 2013 at 11:50 pm •  Published: March 11, 2013
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"As long as you don't ban Cheez-Its," he said. "Cheese-Its are OK. That's my addiction."

On his watch, the city has compelled chain restaurants to post calorie counts, barred artificial trans fats in restaurant food and prodded food manufacturers to use less salt. The city has successfully defended some of those initiatives in court.

Because of the limits of city authority and exemptions made for other reasons, the ban on supersized beverages doesn't cover alcoholic drinks or many lattes and other milk-based concoctions, and it doesn't apply at supermarkets or many convenience stores — including 7-Eleven, home of the Big Gulp.

The rule, if upheld, would create an "administrative leviathan," warned Tingling, who was elected to the Supreme Court bench in 2001 as a Democrat.

The health board has considerable regulatory power, but its limits will likely be a central question in the appeal.

"I think it turns on whether the appellate division feels that the mayor has gone too far in ruling by decree in bypassing City Council," said Rick Hills, a New York University law professor who has been following the case.

In defending the rule, city officials point to the city's rising obesity rate — about 24 percent of adults, up from 18 percent in 2002 — and to studies tying sugary drinks to weight gain.

The judge acknowledged the impact of obesity on the city's residents, and noted that those bringing suit likewise didn't dispute obesity is a significant health issue, but questioned how much sugary drinks can be blamed for it. Ultimately the judge said whether the issue of obesity is an epidemic is not the key issue here, but whether the board of health has the jurisdiction to decide that obesity is such an issue that it could issue a cap on consumption of sugary drinks.

The judge found that the regulation was "laden with exceptions based on economic and political concern."

Critics said the measure is too limited to have a meaningful effect on New Yorkers' waistlines. And they said it would take a bite out of business for the establishments that had to comply, while other places would still be free to sell sugary drinks in 2-liter bottles and supersized cups.

The city had said that while restaurant inspectors would start enforcing the soda size rule in March, they wouldn't seek fines — $200 for a violation — until June.

The ruling "serves as a major blow to Mayor Michael Bloomberg's incessant finger-wagging," said J. Justin Wilson at the Center for Consumer Freedom, created by restaurants and food companies. "New Yorkers should celebrate this victory by taking a big gulp of freedom."

Jose Perez, a fifth-grade special education teacher in Manhattan who was getting a hot dog and can of soda from a street vendor, called the ruling "dead-on."

"Really, I think it's just big government getting in the way of people's rights," he said. "I think it's up to the person. If they want to have a giant soda, that's their business."

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Associated Press writers Meghan Barr and Deepti Hajela contributed to this story.

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Follow Jennifer Peltz at http://twitter.com/jennpeltz

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