Mayor Bloomberg faces new setback in NYC super-sized soda ban

Mayor Michael Bloomberg suffered another setback Tuesday in his quest to limit the size of sugary drinks being sold in New York when a court upheld an earlier judge’s invalidation of the law, but the city said it will keep fighting to enforce the rule.

“Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic,” Bloomberg said after a state appellate court unanimously ruled that his ban on sugary sodas of more than 16 ounces was a violation of executive powers.

That decision upheld one issued March 11, the day before the limits were to take effect. They would have made New York the nation’s first city to restrict sales of super-sized sugary drinks, which Bloomberg says contribute to an obesity epidemic killing more than 5,000 New Yorkers each year.

Sugary beverages are the key driver of the epidemic, he says.

The March decision by State Supreme Court Judge Milton Tingling was a victory for a coalition of groups, including labor unions and the restaurant industry, which had sued to block enforcement after the city’s Board of Health easily approved the regulations last September.

Tingling said the measure was “laden with exceptions” that made its enforcement “arbitrary and capricious.” It would have affected only food service establishments regulated by the city’s Board of Health, such as restaurants, delis and concession stands at cinemas and stadiums, for example.

Grocery stores and corner markets, which are regulated by the state, would not have been affected, meaning a McDonald’s could not have sold a 32-ounce soda, but a 7-Eleven across the street could have sold a Big Gulp.

Tingling also said the Board of Health did not have the authority to pass such rules and that allowing it to do so would undermine limits on authority aimed at preventing abuse of power.

The appellate court on Tuesday agreed.

Bloomberg, who has made improving health a cornerstone of his mayoralty, has made clear he will not back down on the soda issue, one of many health initiatives he has introduced in his three terms in office.

In 2008, New York became the first major city to require large restaurant chains to include calorie counts on menus. Similar laws have since been adopted elsewhere in the country. It has also slashed the use of artificial trans fats in prepared foods and has banned smoking in most public areas.

In the last five years, the city has added 350 miles of bike lanes, to the chagrin of many motorists, and earlier this month, Bloomberg announced plans to introduce the country’s first legislation aimed at steering people away from elevators and escalators and toward staircases.

“We must be doing something right,” Bloomberg said when he introduced his stair-climbing plan, crediting his changes with giving New Yorkers a longer life expectancy than the national average.

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