Legal challenges to New York soda ban face uphill climb

NEW YORK, June 4 Mon Jun 4, 2012 6:14pm EDT

NEW YORK, June 4 (Reuters) - Mayor Michael Bloomberg's proposed ban on large-size sugary soft drinks in New York isn't winning him many new friends in the beverage and restaurant industries.

Trouble is, they may not be able to stop him, at least in the courts.

The mayor's proposal would change the city's administrative code, giving the health department the power to levy fines on most restaurants, movie theaters, food carts and delis that sell sugary soft drinks larger than 16 ounces.

The health board is expected to pass the plan later this year, and the law could take effect by next spring.

Between now and then, many expect lawsuits to be filed, most likely by industry groups rather than individual companies, challenging the city's right to place such restrictions on drink sales.

Yet if either the National Restaurant Association or the American Beverage Association filed suit - both said last week they were exploring their legal options - they would likely be in for an uphill battle, experts said.

"There are so many examples where states impose standards on consumer products sold within their borders," said Michelle Mello, a professor of law and public health at Harvard University who has studied obesity. "It seems hard to believe that this would be singled out as unreasonable by a court."

Several of the largest soft drink makers -- Coca-Cola Co , PepsiCo Inc and Dr Pepper Snapple Group Inc -- either did not return calls for comment or referred questions to the beverage association.

The Bloomberg administration has successfully fought off legal challenges to past health initiatives, including a ban on smoking inside bars and a requirement that chain restaurants print calorie counts on their menus. It has said it is confident the sugar drink proposal would withstand legal scrutiny.

That may not keep the industry from taking their shot in court.

It is too early to tell what specific legal claims industry groups might pursue, but attorneys who work with the food and beverage industries as well as experts in public health law said their best bet in challenging the proposal would be a federal lawsuit claiming a violation of the United States Constitution.

Possible claims include arguing that the law does not have a rational basis or that it violates the Constitution's commerce clause.

Under a rational basis claim, courts can strike down as unconstitutional legislation that is not rationally related to a legitimate government interest.

In this case, the city has a valid interest in protecting public health, experts on both sides said. But the city would have to demonstrate that the ban would lower consumption of soft drinks, and that doing so would reduce obesity among New York residents, thereby improving public health.

Some industry lawyers said the fact that the law would permit certain businesses to sell large drinks -- grocery stores, for instance -- and would not restrict free refills or multiple purchases undermines the city's argument that the ban would lower consumption.

"When you can carry two 16-ounce cups, the burden is on them to show that they're accomplishing this objective," said Marc Scheineson, a former Food and Drug Administration associate commissioner who heads the food and drug practice for Washington-based law firm Alston & Bird.

NANNY STATE?

The beverage industry -- which previously clashed with Bloomberg over the city's aggressive anti-soda advertising campaign -- argues that targeting sugary soft drinks, rather than high-fat foods or other items, does nothing to combat obesity.

But courts tend to be extremely deferential to the judgments of legislative bodies and agencies, said John Humbach, a law professor at Pace University.

And Harvard professor Mello said the association between sugary soft drinks and obesity is clear and the ban would likely be seen as a reasonable way of driving down consumption.

Another option for the beverage and restaurant industries is to claim that the city's move violates the Constitution's Commerce Clause, which gives Congress the authority to regulate interstate commerce.

The Supreme Court has interpreted that clause to mean that states are prohibited from taking actions that harm interstate commerce.

Lawyers for the beverage industry could argue that the ban will harm large producers that ship soda syrup or cups across state lines into New York, experts on both sides said.

At the same time, the Constitution grants states, and by extension municipalities, enormous power to regulate public health and safety.

A court would balance the potential negative impact on interstate commerce against the city's authority to regulate public health - a contest that the city would probably win, said Lawrence Gostin, a Georgetown University law professor who specializes in public health.

"To me, the states have sovereign power to regulate for the public's health, and this is a classic public health intervention," he said.

For now, the industry is waging war on another front: public relations. The Center for Consumer Freedom, an advocacy group backed by the food and restaurant industries, took out a full-page ad this weekend in the New York Time.

It depicted Bloomberg as a nanny in a purple dress.

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