Appeals Court: NYC's Big-Soda Ban Unconstitutional

(AP) Appeals court: NYC’s big-soda ban unconstitutional
By DAVID B. CARUSO
Associated Press
NEW YORK
New York City’s crackdown on big, sugary sodas is staying on ice.

A mid-level state appeals court ruled Tuesday that the city’s Board of Health exceeded its legal authority when it voted last year to put a size limit on soft drinks served in restaurants, theaters, stadiums, sidewalk food carts and many other places.

The ban, which would have stopped the sale of many high-calorie beverages in containers bigger than 16 ounces, had been lauded by some health experts as an overdue attack on one of the primary contributors to a national obesity epidemic.

But in a unanimous opinion, the four-judge panel of the state Supreme Court Appellate Division said that the health board was acting too much like a legislature when it created the limit. It said parts of the new rules were clearly political or economic considerations, rather than health concerns.

The judges wrote that while the board had the power to ban “inherently harmful” foodstuffs from being served to the public, sweetened beverages didn’t fall into that category. Since soda consumption is not necessarily harmful when done in moderation, it “cannot be classified as a health hazard per se,” the court wrote.

Mayor Michael Bloomberg, the driving force behind the regulation, promised a quick appeal.


The American Beverage Association, which had been among the groups challenging the rule, applauded the court ruling, which was the second to find that the Board of Health had overstepped its authority. A similar lower court ruling in March kept the regulation from taking effect.


New York’s effort to cap soda portions has drawn national attention, including from diet companies lauding it as a groundbreaking step in America’s war on extra weight and late-night TV hosts ribbing Bloomberg as a nutrition nanny.

The drinks limit follows other Bloomberg efforts to nudge New Yorkers into better diets. His administration has forced chain restaurants to post calorie counts on menus, barred artificial trans fats from restaurant fare and challenged food manufacturers to use less salt.

Bloomberg and city Health Commissioner Thomas Farley saw soft drinks as a sensible next front in a necessary fight: reining in an obesity rate that rose from 18 to 24 percent of adults in the city within a decade. Studies have tied heavy consumption of sugary drinks to weight gain.


Critics said the city went too far in imposing a serving size limit.


The court’s decision focused heavily on one technical area of the law _ the separation of powers doctrine _ and didn’t address whether the regulations would have infringed on personal liberties.

Just like on the federal level, the executive branch New York City’s government lacks the authority to create new law. That’s the job of the legislative branch, the City Council. The Board of Health does have authority to enact rules that protect the public from germs and diseases, but the court said the city’s charter didn’t give it “unfettered” authority “with respect to all matters having some relation to the public health.”

Writing for the panel, Justice Dianne T. Renwick did leave a slight crack in the door for some type of restriction on beverage sizes.

Nothing in the decision, she wrote, is intended to “express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so.”