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NYC Asks Top Court to Revive Bloomberg’s Big-Soda Ban

June 4 (Bloomberg) -- A lawyer for New York City cited the threat to public health posed by obesity and its direct link to sugary drinks in asking the state’s highest court to cap beverage sizes in restaurants, movie theaters, stadiums and arenas.

The city is seeking to revive the rule proposed by former Mayor Michael Bloomberg after it was struck down by a lower court following lawsuits from trade groups whose members include Coca-Cola Co.

“There’s a serious crisis as to obesity in New York City and there is a rich vast and growing body of literature that shows that overconsumption of sugary drinks plays a unique role,” Richard Dearing, an attorney for the city, told the Court of Appeals in Albany today.

The arguments before the seven-judge court come as U.S. soda consumption has declined during the past nine years as consumers turned to healthier options and a growing array of choices, according to Beverage Digest, a trade publication based in New York.

The $76 billion U.S. soft drink industry is watching the case along with similar initiatives, including a California proposal that would require warning labels on soda and other sweetened beverages, similar to those on cigarettes and alcohol, said John Sicher, editor and publisher of Beverage Digest.

‘Natural Sweeteners’

“The industry is dealing with a number of challenges right now and it is working quickly to innovate with new sweeteners and new natural sweeteners but I think that, certainly, proposals like the New York City proposal concern the industry,” he said.

Bloomberg pushed the so-called portion cap on soda sizes while making public health a focal point of his administration. During his three terms in office, smoking was outlawed in bars and restaurants, artery-clogging trans fats were banned from eateries and chain establishments were forced to list calorie counts of items on their menus.

Bill de Blasio, sworn in as mayor in January, has embraced Bloomberg’s health initiatives, including the limit on soda sizes, and hired Bloomberg administration veteran Mary Bassett to head the city’s Department of Health and Mental Hygiene less than a month after taking office.

Bloomberg first proposed his plan in May 2012 as an amendment to the city’s Health Code. He is the founder and majority owner of Bloomberg LP, the parent company of Bloomberg News.

City Council

Despite calls from some to bring the proposal to a vote before the City Council, the Bloomberg administration sent it to the Board of Health, which granted unanimous approval in September 2012.

The American Beverage Association, whose members include Atlanta-based Coca-Cola, the National Restaurant Association, the National Association of Theatre Owners of New York State and other groups sued a month later, saying the rule interfered with consumers’ ability to make their own choices.

A day before the rule was set to take effect in March 2013, New York State Supreme Court Justice Milton Tingling issued an order permanently blocking it. He said it was “arbitrary and capricious” because it excludes certain businesses, such as convenience stores, that are regulated by the state and doesn’t apply to other beverages with high concentrations of sugar and calories, like fruit juices.

An appeals court in Manhattan upheld Tingling’s ruling in July, saying the Board of Health, a panel of experts that oversees the city’s health code, exceeded its authority in approving the restrictions.

Today’s Argument

Dearing argued to the Court of Appeals today that the Board of Health had the authority under the City Charter to enact rules to address health issues such as obesity.

Richard P. Bress, an attorney representing opponents of the cap, told the court that the board is an administrative agency and doesn’t have the right to impose such a rule without a referendum or the approval of an elected body like the City Council or the state Legislature.

“For the very first time a government body here, the board, has taken it onto itself to have government intruding away into people’s personal decisions, here how much you want to eat, what you want to eat,” said Bress of Latham & Watkins LLP.

Several judges asked Dearing where the line is drawn on such initiatives and whether the board could decide to limit the portion size of foods such as hamburgers and hot dogs.

‘Triple Burgers’

“Burger King has triple burgers, can you say you can only have one?” Judge Eugene F. Pigott asked. “You say you’re a legislative body and that you have jurisdiction over all chronic diseases and obesity is one. So just like now you say, ’Well, these drinks are too big we’re gonna make them smaller.’ Can you say there’s too many patties and the Big Mac has to go?”

Dearing said it would depend on the scientific record that is developed.

“If we had the scientific evidence to show they were a unique and serious contributor to the obesity problem we could take an appropriate step,” the lawyer said.

De Blasio said in a statement issued after today’s arguments that the proposal is a response to the “alarming obesity and diabetes crisis” that disproportionately affects the city’s minority communities.

‘Sound Policy’

“We are hopeful that the state Court of Appeals will respect the expertise and authority of the Board of Health and its public health professionals and allow the city to move forward with a sound policy that can save the lives of many New Yorkers,” de Blasio said.

The American Beverage Association said in a statement today that it looks forward to a final resolution of the issue as the soda limit would have a “negative impact on businesses throughout the city.”

The proposal is the only one of its kind and people don’t support that type of restriction because they know it won’t help solve the obesity problem, said Christopher Gindlesperger, a spokesman for the association.

A nationwide poll by Rasmussen Reports last month found that 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.

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

To contact the editors responsible for this story: Michael Hytha at Peter Blumberg, Andrew Dunn

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