“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.”
And with that, New York Supreme Court Justice Milton A. Tingling Jr. invalidated one of Mayor Bloomberg’s main initiative. The Judge called the legislation “arbitrary and capricious” because the nature of the bill restricted the sale of certain sugary drinks, while allowing the sale of others. The New York Times reports:
In his opinion, Justice Tingling specifically cited a perceived inequity in the soda rules, which applies to only certain sugared drinks — beverages with a high milk content, for instance, would be exempt — and would apply only to some food establishments, like restaurants, but not others, like convenience stores.
The judge also wrote that the fact that consumers can receive refills of sodas, as long as the cup size is not larger than 16 ounces, would “defeat and/or serve to gut the purpose the rule.” The judge also appeared to be skeptical of the purview of the city’s Board of Health, which the Bloomberg administration had maintained has broad powers to seek to better the public’s health. That interpretation, the judge wrote, “would leave its authority to define, create, mandate and enforce limited only by its own imagination,” and “create an administrative Leviathan.”
After the judge imposed a stop to the ban, the Bloomberg administration quickly said it would challenge the decision.
“We plan to appeal the decision as soon as possible, and we are confident the Board of Health’s decision will ultimately be upheld,” Michael A. Cardozo, the Bloomberg administration’s chief counsel, said in a statement. “We believe the Board of Health has the legal authority — and responsibility — to tackle” the causes of obesity.