Monday, March 11, 2013

Bloomberg Soda Ban Fizzles Out In Court

Earlier today, a New York State judge invalidated Mayor Bloomberg's ban on large sugary soft drinks.

Judge Tingling Invalidates Bloomberg Soda Ban

From the NY Daily News:

Manhattan Supreme Court Justice Milton Tingling Jr. declared the ban “arbitrary and capricious,” agreeing with several soda and business groups that had challenged the prohibition in court.
The ruling was a stinging setback for the mayor, whose administration enacted the regulation in the face of criticism that he was turning the city into a “nanny state.”

The Bloomberg-backed city Board of Health approved the regulation last year, calling it a crucial tool to attack obesity. The rule forbid restaurants and certain other businesses from serving sugary sodas larger than 16 ounces.
In striking down the regulation, Tingling noted that the rule would have applied to all food-serving businesses regulated by the city, such as restaurants and movie theaters — but not to state-regulated establishments, like 7-11 convenience stories.
“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” and because it applies to some sugary drinks but exempts others, the judge said.

 The judge also said that only the City Council, not the Board of Health, had the power to approve the ban.

“One thing not seen in any of the Board of Health’s powers is the authority to limit or ban a legal item under the guide of ‘controlling chronic disease,” the judge wrote.

Because the Board of Health approved it, and not the City Council, the “rule would not only violate the separation of powers doctrine, it would eviscerate it,” the judge said.

Businesses groups that filed the legal challenge hailed the decision. “The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban,” said Chris Gindlesperger, spokesman for the American Beverage Association, one of the plaintiffs.

Matt Greller of the National Association of Theatre Owners of New York State said the group was “elated” by the ruling.

“This issue was never about obesity, nor about soda. This was all about power. The court rejected the Mayor’s attempt to unilaterally tell New Yorkers what to drink, and where to drink it. We are pleased that the Court’s decision shows that serious problems like obesity cannot be addressed by the imposition of an arbitrary and porous Mayoral fiat,” he said.

The Bloomberg administration vowed to appeal “as soon as possible.”

“This measure is part of the City’s multi-pronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year, and we believe the Board of Health has the legal authority – and responsibility – to tackle its leading causes,” said Corporation Counsel Michael Cardozo.

Hours before the judge’s ruling, Bloomberg had touted the ban as a national model. “Everybody across this country should do it,” said Bloomberg. And, he suggested, the crusade should not stop there. “In fact, obesity is a problem around the world,” he said. “It’s getting to be as serious if not more so than smoking.” He said tough moves are necessary because the obesity epidemic will “bankrupt” the healthcare system - and, he suggested, because fat people can’t do their jobs as well as those in better shape. He cited an economic hit because of “people who come to work and because they’re overweight just can’t perform as well as people who might be in better shape. Physical activity requires you to be in good shape.”

Bloomberg released new data Monday showing that the neighborhoods where people consume the most sugary drinks also have the highest obesity rates. Most of the neighborhoods are poor.
“If you go back to the 20s, you see these pictures of the old robber barons with their big stomachs out there - that was a sign of success,” Bloomberg said.

“Today those people are doing pilates and running in marathons and triathlons and if you look at where obesity is in the country, it tends to be in the people at the lower end of the economic ladder who don’t have the ability to take care of themselves as well, and if anybody will get helped by this, it’s them.”

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