N.Y. City Asks Top State Court to Review Large-Soda Ban

New York City asked the state’s highest court to review a decision striking down a local ban on sales of large-sized sugary soft drinks.

The city today urged the Court of Appeals in Albany to expedite consideration of its request, citing a recent American Medical Association study showing the health effects of obesity and Type 2 diabetes, conditions city officials claim are linked to soda consumption, according to a Law Department statement.

“This is a pressing public health matter that deserves careful review by the state’s highest court,” the city’s corporation counsel, Michael A. Cardozo, said in the statement. “The Board of Health must be able to combat the growing obesity epidemic, and there is clear precedent for the board to have that authority.”

In September, the board approved Mayor Michael Bloomberg’s plan to cap the size of sugary drinks sold in restaurants, movie theaters, stadiums and arenas at 16 ounces a cup. Groups representing beverage makers, restaurants and theaters sued to block the limit a month later, calling it “unprecedented interference” with consumer choice.

Exceeded Authority

A unanimous panel of the New York State Supreme Court’s Appellate Division, First Department, on July 30 upheld Justice Milton Tingling’s ruling striking down the plan, saying the Board of Health exceeded its authority when it approved the restrictions.

Tingling issued a permanent injunction in March, calling the ban “arbitrary and capricious” because it applies only to some food establishments in the city and excludes other beverages with high concentrations of sugar and calories.

“We are pleased that the lower court’s decision was recently upheld by the appellate division, and we are confident in the ruling,” Christopher Gindlesperger, a spokesman for the American Beverage Association, a Washington-based group of non-alcoholic beverage makers and a plaintiff in the suit against the city, said in an e-mail. “We look forward to a final resolution of this issue.”

The mayor is the founder and majority owner of Bloomberg LP, the parent company of Bloomberg News. The appeal couldn’t be immediately confirmed in court records.

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).

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