June 11 (Bloomberg) -- New York Mayor Michael R. Bloomberg’s plan to restrict sales of large-sized soda drinks is legal and should be reinstated, a lawyer for the city told a panel of state appeals court judges.
The city’s Board of Health in September approved the plan to cap the size of sugary soft drinks sold in restaurants, movie theaters, stadiums and arenas at 16 ounces (473 milliliters) a cup. A trial court judge barred the city from implementing the plan, and the city appealed.
The health board has the authority to enact the ban under its charter, which grants it the power to address public health issues such as obesity, Fay Ng, senior counsel for the city, told the appeals panel in Manhattan today.
People will eat and drink what is placed in front of them, and the ban is about the reducing the size of “default portions” of sugary beverages, which have “exploded” in size, Ng said.
Groups representing beverage makers, restaurants and theaters challenged the regulation in court in October, calling it “unprecedented interference” with consumer choice. State Supreme Court Justice Milton Tingling in Manhattan issued a permanent injunction against it in March.
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, the businesses’ lawyers argued.
Richard P. Bress, a partner with Latham & Watkins LLP representing the plaintiffs, told the appeals court panel that the ban is a “breathtaking example of agency overreach.”
“It has struck a national nerve for a reason,” Bress said. “For the first time this agency is telling people how much of a safe and lawful beverage they can drink.”
The city’s arguments that it is trying to educate consumers while fining businesses who violate the ban is equivalent to saying that a speeding ticket teaches people about driving too fast, Bress said.
“This is the government coercing lifestyle decisions,” he said.
Under the rule, 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 apply to convenience and grocery stores, which are regulated by the state.
Since taking office in 2002, Bloomberg has made public health a hallmark of his administration. He led in banning trans-fat food additives and workplace smoking, raising tobacco taxes and requiring 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 longer than the national average.
The city has argued it’s trying to stem an epidemic of obesity driven by consumption of sugary beverages sold in ever-larger portions. Under the rule, consumers would be free to buy an unlimited number of drinks and get refills.
The mayor is the majority owner of Bloomberg LP, parent of Bloomberg News.
The lower-court 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). The appeal, with the same case name, is in New York State Supreme Court, Appellate Division, First Department (Manhattan).
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