New York Soda Size Limit Statute Barred by State Judge

Source: NYC Department of Health & Mental Hygiene via Bloomberg

A health advertisement released to the media on Wednesday, May 9, 2012 and created by the New York City Health Department is displayed as part of a campaign meant to reduce sugary soft drink consumption. Groups opposing the large-size soda drink ban said the decision by the Board of Health to approve the ban was overreaching and ignored the rights of New Yorkers to make their own choices. Close

A health advertisement released to the media on Wednesday, May 9, 2012 and created by... Read More

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Source: NYC Department of Health & Mental Hygiene via Bloomberg

A health advertisement released to the media on Wednesday, May 9, 2012 and created by the New York City Health Department is displayed as part of a campaign meant to reduce sugary soft drink consumption. Groups opposing the large-size soda drink ban said the decision by the Board of Health to approve the ban was overreaching and ignored the rights of New Yorkers to make their own choices.

New York City’s ban on large-size soda drinks won’t take effect as planned today after a state judge blocked the measure as improperly enacted and arbitrary in its effects, handing a victory to industry groups including the American Beverage Association.

The city’s Board of Health in September approved Mayor Michael Bloomberg’s plan to cap the size of sugary soft drinks sold in restaurants, movie theaters, stadiums and arenas at 16 ounces (473 milliliters) a cup. In October, groups representing beverage makers, restaurants and theaters asked a state court to quash the regulation, calling it “unprecedented interference” with consumer choice.

New York Supreme Court Justice Milton Tingling in Manhattan approved the groups’ request yesterday, issuing a permanent injunction barring the city from implementing the plan. The city said it will appeal the ruling, which also held the law violated the separation of powers because the city council, not the mayor, should promulgate such measures.

“The loopholes in this rule effectively defeat the stated purpose,” Tingling wrote. “It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on specific grounds and the loopholes inherent in the rule, including but not limited to no limitations on refills, defeat and/or serve to gut the purpose of the rule.”

Overreaching, Ignored

The plaintiffs said the city had overreached and ignored the rights of New Yorkers to make their own choices. The plan is “grossly unfair” to small businesses such as street-food vendors and pizzerias because convenience and grocery stores can still sell the larger sizes, lawyers for the groups told Tingling.

The city argued it’s trying to stem an epidemic of obesity driven by consumption of sugary beverages, which is rising because food establishments sell ever-larger portions. Under the rule, consumers are free to buy an unlimited number of smaller drinks and get refills.

“We are confident the board of health’s decision will ultimately be upheld,” Michael A. Cardozo, corporation counsel of New York City’s Law Department, said in a statement. “The board of health has the legal authority -- and the responsibility -- to tackle” the leading causes of a “growing obesity epidemic.” The mayor is the majority owner of Bloomberg LP, the parent of Bloomberg News.

Ordered Restrictions

The board of health last year ordered the restrictions. Food-service establishments would have had three months to comply; after that, they would have faced a $200 fine each time a city inspector found violations. The ban wouldn’t have applied to convenience stores, bodegas and groceries, which are regulated by the state.

“Without a portion cap on sugary drinks, it would be harder to tackle an obesity epidemic that kills more New Yorkers than anything other than smoking and causes misery for many thousands more who suffer from heart disease, diabetes and other debilitating illnesses,” New York City Health Commissioner Thomas Farley said in a statement. “Sugary drinks are a leading cause of this epidemic. Yesterday’s decision threatens the health of New Yorkers, but we are confident that we will win on appeal.”

Administration Hallmark

Since taking office in 2002, Bloomberg, 71, has made public health a hallmark of his administration. He’s banned artery-clogging trans-fat food additives and workplace smoking; raised tobacco taxes; increased testing for HIV, cholesterol and blood pressure; and required restaurant chains to post the calorie content of menu items.

The mayor, a Republican-turned-independent, said such actions have raised life expectancy in the city to almost 81 for babies born in 2010, 2.2 years more than the national average.

“There’s one public health crisis that has grown worse over the years and that is obesity” Bloomberg said yesterday at a news conference. “If we are serious about fighting obesity we have to be honest about what causes it and we have to have the courage to tackle it head on.”

Bloomberg, calling the decision “clearly in error,” said he was confident it would be overturned by a higher court.

“If lower court rulings had always stood, Grand Central Terminal would have been knocked down 40 years ago,” he said.

Other U.S. municipalities are also seeking to cut consumption of sugared drinks.

Junk Food

Boston barred sweetened soda and junk food from school vending machines in 2004, and Mayor Thomas Menino last year ordered a phased sugar-drink ban in all municipal buildings and city-sponsored events. San Francisco and Los Angeles County have also acted to reduce sugared-drink consumption in buildings, according to Harvard University’s School of Public Health.

“Strong evidence indicates that our rising thirst for ‘liquid candy’ has been a major contributor to the obesity and diabetes epidemics,” the public-health school reported on its website.

Theater owners, restaurants, beverage companies, bottlers, unions, Korean-American grocers and the state’s Hispanic Chambers of Commerce joined in the lawsuit, arguing that the board of health lacks authority to institute the ban. They sought the injunction to block the measure from taking effect pending trial on the issue.

Coca-Cola Co. (KO), the world’s largest soft-drink maker, and PepsiCo Inc. (PEP), the second-largest, referred calls for comment on the ruling to the American Beverage Association, a trade group for the non-alcoholic beverage industry representing hundreds of producers, distributors, franchises and support industries.

Industry Costs

Chris Gindlesperger, a spokesman for the Washington-based group, one of the plaintiffs, had said the ban would have cost local bottlers and distributors at least $790,000 combined to retool, remold, re-label and restock.

Yesterday, his group said in a statement that the 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.”

Scott DeFife, the National Restaurant Association’s executive vice president for government affairs, said in an affidavit that fast-food and sit-down eateries would have had to buy tens of thousands of new cups and glasses.

The city’s 52 movie theater owners and their audiences would have paid more as well, said Robert Sunshine, executive director for New York state at the Washington-based National Association of Theatre Owners. Soda accounts for 20 percent of theater profits and 98 percent of such sales come in servings of more than 16 ounces, he said.

‘Sharing Sodas’

“Sharing sodas and other concessions also helps to keep the movie-going experience affordable,” he said in a court-filed affidavit.

The proposed ban has been hard to swallow for many New Yorkers as well.

A Feb. 28 Quinnipiac University poll found that city voters oppose it, 51 percent to 46 percent, with a 3.1 percentage-point error margin. A lobbying group backed by consumers and industry executives, New Yorkers for Beverage Choices, orchestrated a series of protests at City Hall last year.

Since the provision was introduced in June, the mayor has referred to it as a serving-size suggestion, not a ban. Everyone remains free to refill or buy more drinks, as long as none is larger than 16 ounces, he has said.

‘Food Manufacturer’

“Every food manufacturer and soft-drink manufacturer, they have portion control,” the mayor said during a March 10 appearance on CBS News’s “Face the Nation.” “What they’re trying to do is maximize their profits, and what government’s trying to do is to inform you that if you’re overweight and you have all these empty calories and you keep eating, your health is going to suffer.”

At McDonalds Corp. (MCD) restaurants, 42-ounce “super-size” beverages were discontinued in 2004, reducing the hamburger chain’s largest drink size to 32 ounces. That contrasts with the 7-ounce cups that were the only size McDonald’s offered in 1955, the city health department said in materials supporting the size restriction.

A 32-ounce cup of a cola-favored drink contains 374 calories and 102 grams, or about 26 teaspoons, of sugar, the department said.

McDonald’s had said it intended to limit its sweetened drinks’ maximum size to 16-ounce cups, said Cheryll Forsatz, the company’s spokeswoman for the New York region.

Nutritional Choices

“We also provide our customers nutritional information through multiple means to help them make the choices that are best for them,” she said in an e-mail.

Sugary drinks add about 200 calories a day to the average person’s diet, contributing to obesity that in New York accounts for 5,800 deaths, including 1,700 from diabetes; 1,400 cases of end-stage kidney disease; and 2,600 amputations costing $4 billion a year, said Susan Kansagra, who heads the chronic-disease prevention and tobacco-control unit of the Health Department.

Fifty-eight percent of adult New Yorkers and 40 percent of public-school students are overweight or obese. Ten percent of adults have been diagnosed with diabetes, she said.

Yesterday’s ruling “unmasks Mayor Bloomberg’s misguided soda ban policy for what it is: a cosmetic solution to a complex problem,” said William Thompson, a former city comptroller and one of five Democrats seeking the party’s mayoral nomination this year.

The mayor should have focused on encouraging physical fitness and voluntary diet improvements, Thompson said.

“To solve the serious health challenge of our city, we need leadership, not gimmicks,” he said.

The case is New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, 653584-2012, New York State Supreme Court, New York County (Manhattan).

To contact the reporter on this story: Chris Dolmetsch in New York State Supreme Court in Manhattan at cdolmetsch@bloomberg.net; Henry Goldman in New York City Hall at hgoldman@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net; Stephen Merelman at smerelman@bloomberg.net.

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