NYC’s big-soda ban loses last appeal

New York Times News ServiceJune 26, 2014 

— The Bloomberg big-soda ban is officially dead.

The state’s highest court Thursday refused to reinstate New York City’s controversial limits on sales of jumbo sugary drinks, exhausting the city’s final appeal and handing a major victory to the U.S. soft-drink industry, which bitterly opposed the plan.

In a 20-page opinion, Judge Eugene F. Pigott Jr. of the State Court of Appeals wrote that the city’s Board of Health “exceeded the scope of its regulatory authority” in enacting the proposal, which was championed by former Mayor Michael R. Bloomberg.

The decision likely will be seen as a significant defeat for health advocates who have urged state and local governments to actively discourage the consumption of high-calorie beverages, saying the drinks are prime drivers of a nationwide epidemic of obesity.

Two lower courts had already sided against the city, saying it overreached in attempting to prohibit the purchase of sugared drinks in containers larger than 16 ounces, about the size of a medium coffee cup. By a 4-2 vote, the justices upheld the earlier rulings.

In a statement, the city’s health commissioner said the ruling “does not change the fact that sugary-drink consumption is a key driver of the obesity epidemic.”

“We will continue to look for ways to stem the twin epidemics of obesity and Type 2 diabetes by seeking to limit the pernicious effects of aggressive and predatory marketing of sugary drinks and unhealthy foods,” wrote the commissioner, Dr. Mary T. Bassett.

Bloomberg’s proposal, which polls showed was opposed by a majority of New Yorkers, ignited a global debate over soda consumption. It also prompted panic among powerful beverage companies, who feared that their products could be widely branded as a threat to public health.

But questions about the workability of the city’s plan were raised from the start. Because of jurisdictional quirks, only some eating establishments would have been affected, like fast-food franchises, delis and movie theaters; convenience stores and grocery markets would have been exempt. And while the limits would have applied to a broad menu of popular drinks, there was a dizzying number of exceptions: Sports drinks and sweetened teas were included, but milkshakes, fruit juices and alcoholic beverages were not.

The soft-drink industry, through lobbying and aggressive public-relations campaigns, has helped defeat soda taxes and other regulatory measures in states and municipalities around the country. After Bloomberg announced his plan in May 2012, the industry poured millions of dollars into an ad campaign that framed the proposal as infringing on consumer freedom. The industry later retained a white-shoe law firm, Latham & Watkins, to challenge the limits in court.

The American Beverage Association, the industry’s trade group, said in a statement Thursday it was “pleased” with the ruling, saying the proposal “would have created an uneven playing field for thousands of small businesses in the city and limited New Yorkers’ freedom of choice.”

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