Judge Halts City's Large Sugary Drink Ban, Mayor Vows Appeal

The city is fighting a state judge's decision to halt the city's ban on large, sugary drinks that was slated to go into effect on Tuesday.

"With so many people contracting diabetes and heart disease, with so many children overweight and obese, with so many poor neighborhoods suffering the worst of the epidemic, we believe it is reasonable and responsible to draw a line," Mayor Michael Bloomberg said, during a news conference on Monday afternoon hours after the judge's ruling. Bloomberg said the city will appeal the ruling.

New York Supreme Court Justice Milton Tingling made the ruling (PDF) about the city's controversial plan to ban large sugary drinks at restaurants, movie theaters and other venues on Monday.

Tingling writes that loopholes "effectively defeat the stated purpose" of the rule. The rule prohibits selling non-diet soda and some other sugary beverages in containers bigger than 16 ounces. It applies at places ranging from pizzerias to sports stadiums, though not at supermarkets or convenience stores.

Tingling rejected the regulation on two grounds. He said it’s unconstitutional, because it amounts to a change in law that should have gone through the City Council and not just the Board of Health, which the mayor appoints.

Failing to strike the rule down, Tingling wrote, would leave the Health Board, “limited only by its own imagination.” Tingling also said the 16-ounce cap was “arbitrary and capricious,” because it had so many loopholes.

“It applies to some but not all food establishments” the judge wrote, and “excludes other beverages that have significantly higher concentrations.”

Bloomberg administration officials say the Board of Health has the legal authority – and responsibility – to limit soda portions, and they will appeal the decision as soon as possible.

"This measure is part of the City’s multi-pronged effort to combat the growing obesity epidemic," Michael Cardozo, corporate counsel for the city's law department said in a statement. "We believe the Board of Health has the legal authority – and responsibility – to tackle its leading causes.”

Earlier in the day, Mayor Michael Bloomberg sounded a note of optimism about how retailers would respond to the restriction on sugary drinks larger than 16 ounces.

“Like smoking and so many other things, in the end if it's good for the public and this is, then I think you'll see compliance,” Bloomberg said.

The plan calls for 90-day grace period for businesses. After that, non-compliance can result in a $200 fine per inspection. The city is hoping retailers would take up the changes on their own.

"It's really up to the retailer to assess the beverages and determine what complies under the rule," said Susan Kansagra, assistant commissioner with the DOH.

The mayor also unveiled a report on Monday that found nine of the top 10 neighborhoods with the highest obesity rates city-wide were also consumed the greatest number of sugary drinks.

Bloomberg said the neighborhoods identified in the report also happen to be some of the lowest-income neighborhoods in the city.

“It is poor people that really get hurt,” he said.

The report was done by the city’s Health Board, which signed off on Bloomberg’s sugary drink ban policy.

Annmarie Fertoli, Stephen Nessen and the Associated Press contributed reporting