Supersized court challenge to NYC's ban on big, sugary sodas

Wed Jan 23, 2013 2:11pm EST

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* Ban scheduled to go into effect in March
    * City defends rule as a reasonable anti-obesity measure

    By Joseph Ax
    NEW YORK, Jan 23 (Reuters) - The beverage and restaurant
industries on Wednesday urged a New York judge to block Mayor
Michael Bloomberg's ban on large sugary drinks, calling it an
unconstitutional overreach that burdens small businesses and
infringes upon personal liberty.
    The ban, scheduled to go into effect in March, outlaws the
sale of sugary drinks larger than 16 ounces from New York City's
restaurants and many other eateries in an effort to combat
obesity. City officials have said they will not begin imposing
$200 fines on offending businesses until June.
    James Brandt, a lawyer for the American Beverage
Association, which represents companies like Coca-Cola,
PepsiCo and Dr Pepper Snapple Group, told
Manhattan Supreme Court Justice Milton Tingling that the ban,
approved last September by the city's health board, represents
an illegal end-run around the city council.
    "What makes this ban patently offensive is that the
regulation at issue is promulgated by the Board of Health, a
group of civil servants who are not elected by the citizens, who
are appointed by the mayor of New York and as a practical matter
serve at his discretion," Brandt said.
    City attorney Mark Muschenheim, however, said the health
board has the legal authority to pass regulations to protect the
"safety, health and well-being" of the city's residents.
    The ban is the latest initiative in Bloomberg's years-long
quest to use the city's regulatory power to improve public
health. During his tenure, the city has outlawed smoking in bars
and restaurants; required chain restaurants to post calorie
counts; and barred the use of trans fats in food preparation.
    The city has defended the rule as a reasonable measure to
address the growing problem of obesity.
    "There is an association between sugary drinks and obesity,"
said Thomas Merrill, a lawyer for the health department.
    Tingling did not indicate when he will rule, and Brandt said
the plaintiffs will soon move separately for an emergency stay.
    Minority organizations like the NAACP and a New York
pro-business group have filed court papers in support of the
challenge, expressing concern about the ban's potential impact
on small and minority-owned businesses. Several city council
members also oppose the regulation.
    Meanwhile, public health advocacy groups have joined in the
city's defense.
    Brandt told Tingling that the ban favors certain businesses
at the expense of others. The regulation only applies to food
service businesses under the aegis of the health department,
which means convenience and grocery stores will not be affected.
    Cup and bottle manufacturers have complained that many of
their products barely run afoul of the ban. A 500-milliliter
glass bottle, for instance, used by certain drink makers, is
16.9 ounces, while "16-ounce" cups are typically a shade larger
so that restaurants don't have to fill them to the brim.
    The ban exempts drinks that contain more than 50 percent
milk, which means milkshakes or high-calorie frozen coffee
drinks will also be allowed, Brandt said.
    "You'll be able to go into a 7-Eleven and buy the biggest
Big Gulp you want, but you're not able to go to a Sabrett hot
dog stand and buy a 20-ounce Coke or Pepsi," Brandt said.
    But Thomas Merrill, a lawyer for the health department, said
the regulation may not be a "silver bullet" but represents a
positive step in reducing obesity.
    "The perfect cannot be the enemy of the good," he said.
    Brandt also warned that the ban, if allowed, could
eventually lead to even more restrictive regulations.
    "What comes next? Red meat twice a week but no more?" Brandt
said. "No jay-walking?"
    Tingling interrupted him with a smile.
    "For the record, counsel, jay-walking is illegal," he said,
drawing laughs from the gallery.
    The case is New York Statewide Coalition of Hispanic
Chambers of Commerce et al. v. New York Department of Health and
Mental Hygiene, New York State Supreme Court, New York County,
No. 653584/2012.
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