New York City Mayor Michael Bloomberg did not get his way this week. In a scathing opinion, Justice Milton Tingling of the New York Supreme Court struck down the Mayor’s ban on the sale of “sugary drinks” in containers larger than 16 ounces at restaurants, theaters, and food carts.
Mayor Bloomberg pushed the ban’s enactment because of what he considers to be an obesity epidemic among New York City residents that affects the public health. The petitioners challenging the ban asserted that ban did not address the Mayor’s concerns because re-fills and multiple purchases of 16 ounce beverages were not prohibited and the ban only targeted certain sugary drinks, like soda, but not, for example, alcoholic beverages, lattes, milk shakes, and frozen coffees. The petitioners also argued that because the ban only applied to certain establishments, if a consumer could not buy a sugar drink larger than 16 ounces at one establishment, chances are the consumer would go next door to another establishment that was not subject to the ban.
In striking down the ban, Justice Tingling held that the Board of the NYC Department of Health & Mental Hygiene, which promulgated the “Portion Cap Rule,” did not have authority to enact it. Justice Tingling reasoned the Board lacked authority for a variety of reasons. For example, he stated that the ban was not based upon concerns related to its stated purpose, but was based upon other factors, such as political or social concerns. He also stated that although the Board can supervise and regulate the food supply when the city is facing eminent danger due to disease, it did not have the authority to limit or ban a legal item under the guise of controlling chronic disease. He also reasoned that the Board “completely trespassed over territory that is properly under the jurisdiction of the legislature.”
Justice Milton also held that the ban was arbitrary or capricious because it lacked a reasonable basis. He stated:
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 . . . 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.
Mayor Bloomberg said that he intends to appeal the decision because he believes it in error. It is unlikely that he will win on appeal, however, because Justice Tingling’s opinion is well reasoned, in full accord with the precedent, and supported by multiple, independent grounds for decision.