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New York Big-Soda Ban Rejected by State’s Highest Court

Photographer: Allison Joyce/Getty Images

Soda cups of various sizes are seen at the food court of the South Street Seaport in New York on March 11, 2013. Close

Soda cups of various sizes are seen at the food court of the South Street Seaport in... Read More

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Photographer: Allison Joyce/Getty Images

Soda cups of various sizes are seen at the food court of the South Street Seaport in New York on March 11, 2013.

(Corrects error in center’s name in fourth paragraph.)

New York lost its bid to ban oversize sodas in a ruling by the state’s highest court, ending for now the city’s efforts to revive a regulation struck down in legal attacks by beverage industry trade groups whose members include Coca-Cola Co. (KO)

New York’s Court of Appeals said in a 4-2 decision today that the city’s health board lacked authority to impose the ban, proposed by Michael Bloomberg when he was mayor, saying such policymaking is reserved for legislative bodies -- in this case, the New York City Council.

The big-drink ban was an attempt “to promote a healthy diet without significantly affecting the beverage industry,” the court wrote. “The value judgments entailed difficult and complex choices between broad policy goals -- choices reserved to the legislative branch.”

The ruling curtails the powers of administrative agencies in New York, and could have a national effect as the city’s regulators are viewed as innovative leaders, especially on public health issues, said Sara H. Mark, executive director for the Center for Constitutional Governance at Columbia Law School.

The ruling will limit the ability of administrative agencies “to act and to regulate effectively and to keep up with public health crises and even more generally,” said Mark, who filed a brief in support of the city in the case.

Industry Concern

The $76 billion U.S. soft-drink industry has been watching the case, along with other similar initiatives, including a California proposal that would require warning labels on soda and other sweetened beverages. The moves come amid a nine-year drop in soda consumption as consumers turn to healthier beverages and more options, according to trade publication Beverage Digest.

Bloomberg pushed for the portion cap on soft-drink sizes starting in 2012 as part of his administration’s focus on public health. Instead of bringing the proposal to the City Council for a vote, the administration sent it to the Board of Health, which granted unanimous approval in September 2012. It limited to 16 ounces the size of sugary drinks sold in restaurants, movie theaters, stadiums and arenas.

Groups including the American Beverage Association, whose members include Atlanta-based Coca-Cola and the National Restaurant Association sued, saying the rule illegally interfered with consumers’ choices.

‘Arbitrary’ Rule

A trial judge struck down the regulation, saying it was “arbitrary and capricious” because it excluded certain businesses regulated by the state, such as convenience stores, and didn’t apply to other beverages with high concentrations of sugar and calories. An appeals court in Manhattan upheld that ruling, and the city appealed to the Albany-based top court.

Mayor Bill De Blasio said the city is “extremely disappointed” by the ruling.

“The negative effects of sugary drink over-consumption on New Yorkers’ health, particularly among low-income communities, are irrefutable,” De Blasio said in a statement. “We cannot turn our backs on the high rates of obesity and diabetes that adversely impact the lives of so many of our residents.”

Health Commissioner Mary T. Bassett said in a statement that the ruling doesn’t change the fact that sugary drink consumption is a leading cause of an obesity epidemic and that the city will continue to look for ways to limit “the pernicious effects of aggressive and predatory marketing of sugary drinks and unhealthy foods.”

City Council

City Council Speaker Melissa Mark-Viverito said lawmakers would consider a ban on large soft-drink servings if de Blasio seeks one, although she disagrees with de Blasio over the policy.

New Yorkers deserve a comprehensive approach to public health that will support healthy eating and increase access to fresh food instead of punitive policies,” Mark-Viverito said in an e-mail.

The beverage association said today that the rule “would have created an uneven playing field for thousands of small businesses in the city and limited New Yorkers’ freedom of choice.”

Judge Susan P. Read and Chief Judge Jonathan Lippman dissented from the decision, with Read writing it “misapprehends, mis-characterizes and thereby curtails” the Board of Health’s ability to address public health threats.

State Law

The board’s history shows that its authority to regulate public health in the city is delegated by the state Legislature and its regulations have the “force and effect” of state law, Read wrote. The size limit “falls comfortably” within the powers it has been granted, she said.

A nationwide poll by Rasmussen Reports last month found 63 percent of adults oppose a local ban on the sale of any cup or bottle of a sugary drink of more than 16 ounces, while about 19 percent supported such a prohibition and another 19 percent were undecided.

A Quinnipiac University poll conducted shortly after de Blasio took office in January found that 57 percent of city voters said the new mayor shouldn’t pursue the soda size limit, while 37 percent supported the restrictions and 6 percent were undecided.

Bloomberg is the majority owner of Bloomberg LP, the parent of Bloomberg News.

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

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net Fred Strasser, David Glovin

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