A New York state judge on Monday threw out a ban on large sugary drinks set to go into effect in New York City on Tuesday, calling the new regulation “arbitrary and capricious.”
Championed by Mayor Michael Bloomberg as a way to fight the city's growing obesity epidemic, the new regulation was to limit the sale of sugary beverages including non-diet sodas, fruit drinks, sweetened teas and other high-calorie drinks to just 16 ounces.
But the American Beverage Association and other business groups representing bars, restaurants and bodegas had sued to stop the new law, arguing, in part, that it would create an uneven playing field for businesses.
In his ruling, New York Supreme Court Justice Milton Tingling agreed with that argument, calling the new regulation "fraught with arbitrary and capricious consequences.
"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," Tingling continued. "The loopholes in this rule effectively defeat the state purpose of the rule."
Bloomberg had no immediate comment, but Michael Cardozo, an attorney for the city of New York City, said the city would appeal the decision "as soon as possible."
In his ruling, Tingling also criticized Bloomberg's decision to implement the ban without a vote of the New York City Council. The regulation has been passed into law by a decree issued last September by the city's Health Department. Bloomberg's office had defended the regulation by arguing the mayor has a broad mandate to protect and improve the health of New York City residents.
But Tingling was skeptical of that defense, writing that "interpretation" of the law would give it the "authority to define, create, mandate and enforce (laws) limited only by its imagination." The regulation, the justice wrote, "would create an administrative Leviathan and violate the separation of powers doctrine. ... It would eviscerate it."
Tingling added: "Such an evisceration has the potential to be more troubling than sugar-sweetened beverages."
In a statement, Cardozo said he disagreed with the ruling. "We are confident the Board of Health’s decision will ultimately 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," he said. "We believe the Board of Health has the legal authority—and responsibility—to tackle its leading causes.”
But Matthew Greller, the chief lobbyist of the New York City chapter of the National Association of Theater Owners, which had sued to block the ban, said his group was "elated."
"You can't force people to do things, and that's what today's decision shows. You can't tell people what to drink and where to drink it," Greller said.
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