Not So Fast: Judge Halts New York City’s Super-Sized Sugary Drink Ban

A New York state judge has stopped New York City from implementing a ban on the sale of large sweetened drinks.

It is a major setback for Mayor Michael Bloomberg's public health initiatives.

The city is "enjoined and permanently restrained from implementing or enforcing the new regulations," New York Supreme Court Judge Milton Tingling decided Monday.

The regulations are "fraught with arbitrary and capricious consequences," the judge wrote in his ruling. "The simple reading of the rule leads to the earlier acknowledged uneven enforcement even within a particular city block, much less the city as a whole… It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the rule."

For example, a pizzeria, which is licensed by the city's Board of Health, would not have been allowed to sell soda in cups larger than 16 ounces, but a hypothetical next-door 7-Eleven convenience store, which is regulated by the state, would have no such restrictions.

Also, the rule excempts drinks that are more than 50 percent milk. That means the sale of a 20-ounce milkshake, which might have more sugar and calories than a 20-ounce cola, would not be restricted but sale of the soda would be.

The rule also excempts alcoholic beverages, regardless of sugar and calorie content.

The judge also raised several arguments about the Board of Health and the mayor's right to unilaterally create such a ban without action from the City Council. The mayor controls the Board of Health.

The city's top lawyer said he will appear the ruling "as soon as possible" and is confident the Board of Health's rule will be upheld.

"This measure is part of the city's multi-pronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year," Michael Cardozo, the city's corporation counsel, said in a statement, "and we believe the Board of Health has the legal authority -- and responsibility -- to tackle its leading causes."


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