Big-soda ban falls flat in New York high court

FILE - In this March 12, 2013 file photo, New York City Mayor Michael Bloomberg, right, looks at a 64oz cup, as Lucky's Cafe owner Greg Anagnostopoulos stands behind him, during a news conference at the cafe in New York. The New York Court of Appeals ruled Thursday, June 26, 2014 that the city's health department overstepped its bounds when it restricted the size of sodas. The court is siding with a lower court that overturned the 2012 ban.  (AP Photo/Seth Wenig, File)
FILE - In this March 12, 2013 file photo, New York City Mayor Michael Bloomberg, right, looks at a 64oz cup, as Lucky's Cafe owner Greg Anagnostopoulos stands behind him, during a news conference at the cafe in New York. The New York Court of Appeals ruled Thursday, June 26, 2014 that the city's health department overstepped its bounds when it restricted the size of sodas. The court is siding with a lower court that overturned the 2012 ban. (AP Photo/Seth Wenig, File)

NEW YORK -- New York lost its bid to ban oversize sodas in a ruling by the state's highest court, ending the city's efforts to revive a regulation struck down in legal attacks by beverage industry trade groups.

New York's Court of Appeals said in a 4-2 decision Thursday that the city's health board lacked authority to impose the ban, proposed by Michael Bloomberg when he was mayor, saying such policymaking is reserved for legislative bodies -- in this case, the New York City Council.

The big-drink ban was an attempt "to promote a healthy diet without significantly affecting the beverage industry," the court wrote. "The value judgments entailed difficult and complex choices between broad policy goals -- choices reserved to the legislative branch."

The ruling curtails the powers of administrative agencies in New York and could have a national effect because the city's regulators are viewed as innovative leaders, especially on public health issues, said Sara Mark, executive director for the Center for Constitutional Governance at Columbia Law School.

The ruling will limit the ability of administrative agencies "to act and to regulate effectively and to keep up with public health crises," said Mark, who filed a brief in support of the city in the case.

The $76 billion U.S. soft-drink industry has been watching the case, along with other similar initiatives, including a California proposal that would require warning labels on soda and other sweetened beverages. The moves come during a nine-year drop in soda consumption as consumers turn to more healthful beverages and more options, according to trade publication Beverage Digest.

Bloomberg pushed for the portion cap on soft drink sizes starting in 2012 as part of his administration's focus on public health. Instead of taking the proposal to the City Council for a vote, the administration sent it to the health board, which granted unanimous approval in September 2012. It limited to 16 ounces the size of sugary drinks sold in restaurants, movie theaters, stadiums and arenas.

Groups including the American Beverage Association -- whose members include Atlanta-based Coca-Cola Co. -- and the National Restaurant Association sued, saying the rule illegally interfered with consumers' choices.

A trial judge struck down the regulation, saying it was "arbitrary and capricious" because it excluded certain businesses regulated by the state, such as convenience stores, and didn't apply to other beverages with high concentrations of sugar and calories. An appeals court in Manhattan upheld that ruling, and the city appealed to the Albany-based high court.

Mayor Bill de Blasio said the city is "extremely disappointed" by the ruling.

"The negative effects of sugary drink over-consumption on New Yorkers' health, particularly among low-income communities, are irrefutable," de Blasio said in a statement.

"We cannot turn our backs on the high rates of obesity and diabetes that adversely impact the lives of so many of our residents."

Health Commissioner Mary Bassett said in a statement that the ruling doesn't change that sugary-drink consumption is a leading cause of an obesity epidemic and said the city will continue to look for ways to limit "the pernicious effects of aggressive and predatory marketing of sugary drinks and unhealthy foods."

City Council Speaker Melissa Mark-Viverito said lawmakers would consider a ban on large soft drink servings if de Blasio seeks one, although she disagrees with de Blasio over the policy.

"New Yorkers deserve a comprehensive approach to public health that will support healthy eating and increase access to fresh food instead of punitive policies," Mark-Viverito said in an email.

The beverage association said Thursday that the rule "would have created an uneven playing field for thousands of small businesses in the city and limited New Yorkers' freedom of choice."

Judge Susan Read and Chief Judge Jonathan Lippman dissented from the decision, with Read writing it "misapprehends, mis-characterizes and thereby curtails" the health board's ability to address public health threats.

The board's history shows that its authority to regulate public health in the city is delegated by the state Legislature and its regulations have the "force and effect" of state law, Read wrote. The size limit "falls comfortably" within the powers it has been granted, she said.

Information for this article was contributed by Duane D. Stanford and Henry Goldman of Bloomberg News.

A Section on 06/27/2014

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