NYC Ban on Large Sugar Laden Drinks Struck Down by Court

[Wetcoaster]

Last year NYC Mayor Bloomberg announced that the city would be banning high sugar drinks (principally sodas) in containers larger than 16 ounces as a measure to try to combat obesity in NYC residents - the so-called Portion Cap Rule.

The ban only applied to restaurants, mobile food carts, delis and concessions at movie theaters, stadiums or arenas and any other establishments that receive letter grades for food service under city control. It did not apply to supermarkets and chain convenience stores such as 7-11 Home of the Big Gulp which are under state control. It also did not apply to other sugared drinks such as coffee based beverages or alcoholic drinks.

Critics decried it as just another in a line of Mayor Bloomberg "nanny state" measures.

The Portion Cap Rule was to take effect today and failure to comply would carry a $200 fine although there was to a moratorium on fines for several months (June 2013) as establishments began to comply.

New York City officials are proposing banning the sale of large-size sodas and other sugary beverages at restaurants and food carts.

"More than half of NYC adults (58%) are overweight or obese," Mayor Michael Bloomberg tweeted Thursday. "We're doing something about it."

The ban would outlaw such drinks larger than 16 ounces at restaurants, food carts and any other establishments that receive letter grades for food service. It would not apply to grocery stores.

Critics -- including McDonald's and Coca-Cola, which stand to be hurt by the proposal -- quickly assailed it as "misguided" and "arbitrary."

...

Speaking by satellite to the All Things D technology event in California -- a previously scheduled appearance -- Bloomberg said, "This is something we think we have the legal authority to do. We¹re not taking away anybody's right to do something; we're simply making it different for them in how they do it." He said he hoped the move will help lead to different behaviors.

The city spends $4 billion a year on medical care for overweight people, he said.

The statement from his office cited health problems facing the city, including an increase in obesity. "The single largest driver of these alarming increases in obesity is sugary drinks, which have grown in size," the statement said.

...

The New York City Health Department commissioner, Dr. Tom Farley, tweeted, "Big sugary drinks are major contributor to obesity epidemic. We're proposing to cap them at 16 oz. in restaurants."

"There they go again," Stefan Friedman, a spokesman for the New York City Beverage Association, said in a statement Thursday. "The New York City Health Department's unhealthy obsession with attacking soft drinks is again pushing them over the top. The city is not going to address the obesity issue by attacking soda because soda is not driving the obesity rates."

McDonald's restaurants issued a statement saying, "Public health issues cannot be effectively addressed through a narrowly focused and misguided ban. This is a complex topic, and one that requires a more collaborative and comprehensive approach."

A statement from the Coca-Cola company said the "people of New York City are much smarter than the New York City Health Department believes. ... New Yorkers expect and deserve better than this. They can make their own choices about the beverages they purchase. We hope New Yorkers loudly voice their disapproval about this arbitrary mandate."

http://edition.cnn.c....html?hpt=hp_t2

The ban would have required establishments covered by the law to have to re-size beverage containers and print new menus and change signage at a significant cost.

The measure which was enacted by the NYC Board of Health was challenged in court by a number of groups including Coca-Cola, PepsiCo and McDonald's as well as the NYC Restaurant Association.

On Monday New York State Supreme Court Judge Milton Tingling ruled the new regulation was "arbitrary and capricious" and declared it invalid on a number of grounds including that Bloomberg exceeded his authority by sidestepping the City Council and placing the issue before the city's Board of Health, a panel whose members were each appointed by the mayor.

The judge ruled the regulations are "fraught with arbitrary and capricious consequences," noting how there would be uneven enforcement within a single city block. The regulations didn't affect the Big Gulp at 7-11 because supermarkets and convenience stores are regulated by the state, not the city. He wrote that regulations exclude other beverages that have significantly higher concentrations of sugar sweeteners and calories on "suspect grounds." The regulations don't limit patrons from getting refills; that provision, the judge said, appears to "gut the purpose of the rule."

Here is the ruling and its main point:

Next the court addresses whether the Portion Cap Rule itself is arbitrary or capricious.

The standard for same can be described as whether the administrative action is without foundation in fact. Pell v. Bd. of Educ., 34 N.Y.2d 222, (1974).

The court affords the Board every degree of judicial deference in promulgating the Rule. Fanelli v. N.Y. City Conciliation & Appeals Bd., 90 A.D.2d 756 (1' Dept. 1982). The Rule is nevertheless 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. Furthermore, as previously discussed, the loopholes in this Rule effectively defeat the stated purpose of the Rule. 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 the aforementioned reasons, in the Article 78 branch of this action, The Portion Cap Rule is found to be arbitrary and capricious.

http://online.wsj.co...aruling0311.pdf

Mayor Bloomberg has stated he plans to appeal the ruling and does not intend to bring the measure before City Council for a vote.

http://www.cnbc.com/id/100442833

http://online.wsj.co...3929974394.html

[King Heffy]

If that asinine rule is ever brought in here, I'm moving. Even the large pop isn't large enough at most places.

[Wetcoaster]

If that asinine rule is ever brought in here, I'm moving. Even the large pop isn't large enough at most places.

[aGENT]

Just tax the products. Offers "incentive" to cut back and tax dollars to pay medical costs. Done and done.

[stawns]

If that asinine rule is ever brought in here, I'm moving. Even the large pop isn't large enough at most places.

[Wetcoaster]

Just tax the products. Offers "incentive" to cut back and tax dollars to pay medical costs. Done and done.

[aGENT]

The tobacco approach??

[SkeeterHansen]

Yup... though I'd start with high fructose corn syrup over traditional sugar myself. Then go from there.

[wizeman]

I don't drink soda or coffee. I know lots of people who drink diet soda and take their coffee black so they don't get those extra calories. I think Wetcoaster is right. I read in his reports here that people are drinking their calories . I do think we should do something about the drinks with excessive sugar.

[Common sense]

A stupid proposal from the beginning. Walk into McDs and you can't get 300 calories from a 1L bottle Coca-Cola; walk 5 steps next door to a 7-11 and get a Big Gulp.

[PlayStation]

Taxing our sugar? We`ll make our own sugar!!!

Whos with me!

I have the Minecraft formula

[aGENT]

That's what I think the real problem is, is the HFCS. Not the real sugar, per se.

[butters]

Even the large pop isn't large enough at most places.

[aGENT]

Then you drink far far too much pop.

[Wetcoaster]

Then you drink far far too much pop.

[DarthNinja]

I don't drink soda or coffee. I know lots of people who drink diet soda and take their coffee black so they don't get those extra calories. I think Wetcoaster is right. I read in his reports here that people are drinking their calories . I do think we should do something about the drinks with excessive sugar.

[Jaimito]

it doesnt stop people from order 2,3,4, 5 etc drinks.

over eating is hard to regulate.

[Mr. Ambien]

Well, it was clearly asinine in that it targeted some locations and not others, but the obvious problem here is that the government cares at all what people are drinking. Who cares if it's Coke, Captain Morgan, Pennzoil 5W30 synthetic, or the bong water?

[Salmonberries]

edited

[Salmonberries]

Yup... though I'd start with high fructose corn syrup over traditional sugar myself. Then go from there.