City responds after appeals court upholds strike-down of soda ban

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The state-level appeals court upheld a lower court ruling that the ban on large sugary drinks would be an overreach of executive powers. Credit: Getty Images

After a state appeals court ruled the city’s plan to ban large sugary drinks is an illegal overreach of executive power, Mayor Michael Bloomberg vowed to not let a “temporary setback” stop the city from continuing its efforts to fight obesity.

“We firmly disagree with the court’s reasoning and will seek to appeal to the Court of Appeals as quickly as possible,” city lawyer Michael Cardozo said in a statement.

While the city cited “broad precedent” for the Board of Health to enact the ban, the board “failed to act within the bounds of its lawfully delegated authority” when it passed the measure, the First Department of the Supreme Court’s Appellate Division said in a unanimous decision Tuesday.

First announced by Bloomberg last year, the soda ban would cap the size of sugary beverages sold in restaurants and other eateries at 16 ounces. In March, a state court deemed the regulation invalid, calling it “arbitrary and capricious.”

In Tuesday’s ruling upholding the decision, the four-judge appeals court noted the ban was not put to a City Council vote, despite some members asking for one. Doing so was “violative of the principle of separation of powers.”

The appeals court also pointed out the ban had several loopholes, including exempting businesses not under the authority of the city’s health department, like grocery stores and chains.

“Accordingly, the selective restrictions enacted by the Board of Health reveal that the health of the residents of New York City was not its sole concern,” Judge Dianne Renwick wrote. “If it were, the ‘soda ban’ would apply to all public and private enterprises in New York City.”

Still, the city was defiant, pointing out sugary drinks have been linked to the obesity epidemic.

“Since New York City’s groundbreaking limit on the portion size of sugary beverages was prevented from going into effect on March 12, more than 2,000 New Yorkers have died from the effects of diabetes,” Bloomberg said in a statement.

The American Beverage Association, one group that petitioned the court to strike down the ban, was “pleased” the decision was upheld.

“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,” said Christopher Gindlesperger, senior director of public affairs at the association.

Though the city will ask the Court of Appeals to look into Tuesday’s decision, the court can choose not to do so.

Follow Anna Sanders on Twitter: @AnnaESanders


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