Judge voids New York soda ban, calling it 'arbitrary and capricious'

The judge said New York's soda ban, which was set to take effect Tuesday, required city council approval and was arbitrary because some retailers, such as drugstores, were not affected by the ban.

Restaurants and lovers of sugary drinks have gotten a last-minute reprieve from New York Mayor Michael Bloomberg’s controversial “soda ban,” with a judge throwing out the measure one day before it was set to go into effect.

In a blow to Mayor Bloomberg and his public-health initiative, State Supreme Court justice Milton Tingling in Manhattan declared the ban invalid Monday, calling it “arbitrary and capricious.”

The ban, which was advanced by the city's Board of Health, would have restricted the portion sizes of sugary drinks like sodas, sports drinks, and sweetened coffees to 16 ounces. City food establishments including dine-in and fast-food restaurants, mobile food carts, and delis would have been slapped with a $200 fine for serving sugary drinks in containers larger than that size beginning in June.

The American Beverage Association filed the lawsuit challenging the rule, calling it an illegal overreach that encroached on consumers’ personal liberty.

“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," the association said in a statement. "With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City.”

A coalition of small-business organizations had asked the judge to delay the start date of the ban until the State Supreme Court ruled on the case. The delay wasn’t necessary due to Judge Tingling’s 11th-hour ruling, which said the soda ban required city council approval and was arbitrary in its application because some retailers – like convenience and drug stores – were not affected by the ban.

“It is arbitrary and capricious because 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 on suspect grounds, and the loopholes inherent in the rule ... serve to gut the purpose of the rule,” he wrote.

Bloomberg disagreed. "We think the judge is totally in error in the way he interpreted the law," he said after the ruling was issued Monday. "Being the first to do something is never easy. When we began this, we knew we would face lawsuits.... We’re confident today’s decision will ultimately be reversed."

Indeed, the Mayor’s Office said it plans to appeal the ruling. 

“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 Cardozo, New York City's corporation counsel, said in a statement. "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.”

Bloomberg promoted the soda ban as a means to fight New York’s overweight and obesity rate, which currently stands at 58 percent, as well as rein in the city’s health-care costs. According to the New York City Department of Health, the city spends an estimated $4.7 billion each year on medical care for overweight and obese people. A New York City Community Health Survey released Monday linked consumption of sugary beverages to high rates of obesity.

“This new data is the latest evidence that sugary drinks are helping to drive the obesity epidemic, which falls hardest on low-income communities,” Bloomberg said in a statement.

The soda ban was one of a number of controversial public-health initiatives the mayor has pushed in recent years, including efforts to curb smoking and sodium consumption. Last year, the Board of Health made it illegal to smoke in the city’s parks and on its public beaches and pedestrian plazas like Times Square.

Not surprisingly, the soda ban had received plenty of pushback. A Quinnipiac University poll released last week found 51 percent of people opposed it, while 46 percent approved. In recent weeks, more than 20,000 New Yorkers joined New Yorkers for Beverage Choices, a group that has fought the proposed drink restrictions with media campaigns and an online petition. The group was not immediately available to comment.

Most of the city’s 24,000 restaurants weren’t happy about the ban, either.

Some restaurants had been preparing by disposing large cups and ordering smaller glasses, adjusting pricing on smaller-sized drinks, changing meal-and-drink deals, and reprinting menus – all at their own expense. One Subway restaurant on the Upper East Side estimated the ban would have cost it $500 per week in lost beverage sales.