(AP Photo/Bebeto Matthews)
By Jennifer Peltz
Associated Press
NEW YORK (AP) — A judge struck down New York City’s pioneering ban on big sugary drinks Monday just hours before it was supposed to take effect, handing a defeat to health-minded Mayor Michael Bloomberg and creating confusion for restaurants that had already ordered smaller cups and changed their menus.
State Supreme Court Justice Milton Tingling said the 16-ounce limit on sodas and other sweet drinks arbitrarily applies to only some sugary beverages and some places that sell them.
“The loopholes in this rule effectively defeat the stated purpose of this rule,” Tingling wrote in a victory for the beverage industry, restaurants and other business groups that called the rule unfair and wrong-headed.
In addition, the judge said the Bloomberg-appointed Board of Health intruded on City Council’s authority when it imposed the rule.
The city vowed to appeal the decision, issued by New York state’s trial-level court.
“We believe the judge is totally in error in how he interpreted the law, and we are confident we will win on appeal,” Bloomberg said. He added: “One of the cases we will make is that people are dying every day. This is not a joke. Five thousand people die of obesity every day in America.”
For now, though, the ruling it means the ax won’t fall Tuesday on supersized sodas, sweetened teas and other high-sugar beverages in restaurants, movie theaters, corner delis and sports arenas.
“The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban,” the American Beverage Association and other opponents said, adding that the organization is open to other “solutions that will have a meaningful and lasting impact.”
The first of its kind in the country, the restriction has sparked reaction from city streets to late-night talk shows, celebrated by some as a bold attempt to improve people’s health and derided by others as another “nanny state” law from Bloomberg during his 11 years in office.
On his watch, the city has compelled chain restaurants to post calorie counts, barred artificial trans fats in restaurant food and prodded food manufacturers to use less salt. The city has successfully defended some of those initiatives in court.
Because of the limits of city authority and exemptions made for other reasons, the ban on supersized beverages doesn’t cover alcoholic drinks or many lattes and other milk-based concoctions, and it doesn’t apply at supermarkets or many convenience stores — including 7-Eleven, home of the Big Gulp.
The rule, if upheld, would create an “administrative leviathan,” warned Tingling, who was elected to the Supreme Court bench in 2001 as a Democrat.
In defending the rule, city officials point to the city’s rising obesity rate — about 24 percent of adults, up from 18 percent in 2002 — and to studies tying sugary drinks to weight gain. Care for obesity-related illnesses costs government health programs about $2.8 billion a year in New York City alone, according to city Health Commissioner Dr. Thomas Farley.
Critics said the measure is too limited to have a meaningful effect on New Yorkers’ waistlines. And they said it would take a bite out of business for the establishments that had to comply, while other places would still be free to sell sugary drinks in 2-liter bottles and supersized cups.
Beverage makers had expected to spend about $600,000 changing bottles and labels, movie theater owners feared losing soda sales that account for 10 percent of their profits, and delis and restaurants would have had to change inventory, reprint menus and make other adjustments, according to court papers.
The city had said that while restaurant inspectors would start enforcing the soda size rule in March, they wouldn’t seek fines — $200 for a violation — until June.
Some restaurants had already ordered and started using smaller glasses for full-sugar soda, while others began experimenting with freshly squeezed juices as alternatives to soda for children’s parties. Dunkin’ Donuts shops have been telling customers they will have to sweeten and flavor their own coffee. Coca-Cola has printed posters explaining the rules.
The ruling “serves as a major blow to Mayor Michael Bloomberg’s incessant finger-wagging,” said J. Justin Wilson at the Center for Consumer Freedom, created by restaurants and food companies. “The court confirmed what most New Yorkers already know: They don’t need a government regulator to dictate their diet choices. New Yorkers should celebrate this victory by taking a big gulp of freedom.”
Jose Perez, a fifth-grade special education teacher in Manhattan who was getting a hot dog and can of soda from a street vendor, called the ruling “dead-on.”
“Really, I think it’s just big government getting in the way of people’s rights,” he said. “I think it’s up to the person. If they want to have a giant soda, that’s their business.”
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Associated Press writer Deepti Hajela contributed to this story.
