Judge Blocks Bloomberg's Big Beverage Ban

Today a judge blocked New York Mayor Michael Bloomberg's big beverage ban, which was scheduled to take effect tomorrow. New York Supreme Court Justice Milton Tingling issued a permanent injunction barring the city from enforcing its drink regulations, which he said are "fraught with arbitrary and capricious consequences."

I detailed some of those last week, noting that beverages exempt from the city's 16-ounce serving ceiling often have more calories per ounce than exempt beverages, even though fighting obesity is the official rationale for the restrictions. Tingling also noted that only certain businesses are covered by the regulations: restaurants, coffee shops, food carts, and concession stands. Convenience stores and supermarkets, meanwhile, would have been free to sell soda servings as big as customers wanted, including 7-Eleven's Big Gulp, the epitome of effervescent excess. The upshot would have been "uneven enforcement even within a particular city block," Tingling said. He deemed the drink diktat "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, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule."

Tingling also concluded that the Bloomberg-appointed Board of Health does not have the authority to "limit or ban a legal item under the guise of 'controlling chronic disease.'" He said the proper forum for the drink restrictions Bloomberg wanted would have been the city council, because "it alone has the authority to legislate as the board seeks to do here." He said Bloomberg's meddling in people's drink orders raises the problem of untrammeled regulatory power "to new heights":

To accept the respondents' interpretation of the authority granted to the Board by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination. The fact that respondents interpret the Charter precisely to conclude same, tolls the bell on this regulation. The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine. The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar sweetened beverages.

You can read Tingling's ruling, which came in response to a lawsuit filed by groups representing merchants, restaurants, theaters, and soft drink manufacturers, here. The city plans to appeal.

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  • Andrew S.||

    Tyranny of the judiciary! Activist judges!!!

  • MJGreen||

    What doesn't this dbag get about democracy? Michael Bloomberg was elected. That means he gets to make the call.

    Come on!

  • Proprietist||

    It is hilarious to watch conservatives laud this judicial activism.

  • deified||

    All hail the Honorable Milton Tingling!

  • Killazontherun||

    arbitrary and capricious consequences.

    Could we get this guy to explain a few things to Justice Roberts?

  • Hyperion||

    Not necessary. Roberts has the final say, and he says PENALTAX you fucking piss ants!!!!

  • R C Dean||

    Can I just say how gratified I am that my little neologism caught on, at least in these precincts?

  • Killazontherun||

    You're the man, RC. I don't care what your mom screams about you when I give her an orgasm. You're the man.

  • Enough About Palin||

    See that's where I'm different than you. Me, I would care if RC mom shouted out during orgasm, "This is so inadequate!" But that's just me.

  • Killazontherun||

    It can be quite disturbing the stuff she reveals but it still beats the post coitus stories of a rape survivor.

  • Killazontherun||

    "This is so inadequate!"

    I usually get around that problem by compensating with a little choke action, but RC's mom has a really thick neck and I have small hands.

  • Bobarian||

    I find the fact that RC's Mom screams out anything about RC while in coital bliss to be the most disturbing thing I've heard in a while.

  • Paul.||

    I always try to give credit when I crib something. DemOp media. Hat tip to you, RC.

  • LTC(ret) John||

    So now Bloomie and Co. will go back and enact a blanket ban...problem solved!

  • Pro Libertate||

    See, I don't see where the government has the authority in the first place.

  • ||

    Hello, the city pays for the healthcare of the poor, so obviously they have a viable interest in making sure those people don't make choices that drive up those costs.

    How do you keep people from making bad choices?

    Good question. The simple answer is: remove the bad choice.

  • Pro Libertate||

    Statism sure is a complicated web of deceit and theft, isn't it? How do they keep up?

  • ||

    Doughnuts. Beat cops love 'em, and without beat cops who would protect the food safety inspector when he comes to measure the cup?

  • R C Dean||

    So why is Bloomberg removing the choices from people who are not dependent on the City?

  • wareagle||

    because Bloomy does not see anyone who is NOT dependent on the city, if by city you mean state. There can be no independence, only obedience. Citizens are nice, but subjects are so much easier to corral.

  • ||

    Helloo-oo, the "city" doesn't pay for anything but merely shifts costs to people who have the capacity to pay and, I presume, the good sense not to in some cases.

    So your question is based on flawed premises. The "simple answer" is to abolish the welfare state.

    But the usual suspects (militarists and crony capital) don't want improvement, for a welfare state is an expedient way to shelter their corruption from rebellion. Bleeding hearts are happy to oblige, of course.

  • GroundTruth||

    "the city pays for the healthcare of the poor, so obviously they have a viable interest in making sure those people don't make choices that drive up those costs."

    One more problem with socialized medicine!

  • Paul.||

    See, I don't see where the government has the authority in the first place.

    Go listen to Limbauch, Tea Fucker.

  • ||

    This.

    Although they'll have to at least get the City Council on board. I'm sure it's a mere formality, but then it wont just be ElBloombito's ban, it will be New York's.

  • Fist of Etiquette||

    More like New York Supreme Court Judge Milton Tinkling. Am I right?

  • deified||

    Big Gulps are pretty stupid but they're nothing--NOTHING--compared to the idiocy of a large beverage ban.

    Herr Bloomberg should stand down and quit raping Lady Liberty. She doesn't like it and he should stop.

  • Rich||

    Tingling issued a permanent injunction barring the city from enforcing its drink regulations, which he said are "fraught with arbitrary and capricious consequences."

    Too bad he, using the same elegant reasoning, can't issue injunctions concerning *most* legislation,

  • R C Dean||

    a permanent injunction

    Sweet (snerk). Now if they can only keep it from being stayed pending appeal . . . .

  • Capt Ace Rimmer||

    Look at that picture. That dude needs go enjoy his life and get the hell out of mind.

  • Hyperion||

    He's too short to enjoy life. His only shot at lessening his own misery must come from oppressing others.

  • some guy||

    That picture is such BS. They always use sugar cubes instead of a pile of sugar because they can stack them up to make it look bigger.

  • Zeb||

    There is a pretty astonishing amount of sugar in soda (at least to my mind). But the solution, if you are worried about that sort of thing, is not to drink sugar sweetened beverages in huge quantities.

  • ||

    PWND

  • Almanian!||

    +16oz

  • Almanian!||

    Yeah, we'll see how long this lasts.

  • Tman||

    The funniest part of this stupid ban is the way they just completely ignore Starbucks drinks, some of which even at 16 ounces has almost twice the amount of calories and sugar than a normal soda.

    The "Tazo Green Tea Frappuchino" has 650g of calories, whereas a 20 ounce coke has 240g of calories. Why isn't this banned as well?

    Thankfully there is judge with some common sense left.

  • RG||

    Because hipsters would freak out.

  • John||

    But poor brown and black people don't drink there. Good respectable white people got to Starbucks and Blooburg and the rest of the NY liberals feel the white people can be trusted with a little freedom. Black people, not so much.

  • JD the elder||

    In all honesty, I don't think it's a matter of "trusting the white people", it's just a matter of whose ox is gored. Liberal White Manhattanites don't drink that much soda, but if you messed with their Starbucks they'd scream bloody murder. Besides, this measure was for the good of poor people, and poor people don't go to Starbucks, don't you know.

  • some guy||

    Anything with over 50% milk content was exempted too. So go ahead and drink that 40 oz latte. It's sooooo much better for you than a 40 oz. Coke.

  • ||

    Sounds like its time for somebody to market his "Cola-Au-Lait"

  • ||

    It's. Fuck, fuck, fuck.

  • John Thacker||

    I think that coffee is covered, but Starbucks drinks that have enough dairy to be considered milk products are exempt, because dairy is officially Good For You, regardless of the amount of calories or sugar.

  • Tman||

    I just looked some more about the "Tazo Green Tea Frappuchino".

    The 24 ounce has 97g of sugar, and 650 g of calories.

    http://www.myfitnesspal.com/fo.....eam-137396

    A TWO LITER of coke has 108g of sugar and 400 calories.

    http://www.sugarstacks.com/beverages.htm

    Bloomberg is a moron.

  • some guy||

    Bloomberg knew what he could enact without pissing off too many of the wrong people. If he had outlawed all 2-liters, everywhere the peons would have revolted.

  • Tman||

    I thought he did ban the delivery of 2 liters with pizza, etc.? I could be wrong, that may be from another stupid ban.

  • Enough About Palin||

    Yes he did. And the woman I read about this morning who owns a pizzeria that threw out $1,000 worth of 2-liter bottles is gonna be pissed.

  • ||

    A TWO LITER of coke has 108g of sugar and 400 calories.

    http://www.sugarstacks.com/beverages.htm

    That's a 1 litre bottle champ. Bloomburg may or may not be a moron but he is a repugnant human being.

  • Tman||

    Ah, I screwed up. I thought it said two liter.

    Still, the overall point still stands. A one liter coke isn't worse for you than a 24 ounce "Tazo Green Tea Frappuchino".

  • R C Dean||

    A liter is more than 16 oz, by a fraction, so even a one liter bottle is verboten.

  • R C Dean||

    Bah. A liter is way more than a pint, and is slightly more than a quart.

    Ounce for ounce, the Tazo and the Coke deliver about the same amount of calories. The Tazo gets some from milk and less from sugar.

  • Tman||

    A liter is 34 ounces.

    The Tazo was 24 ounces.

    The Tazo has 97g of sugar, and 650 calories.

    The liter of coke (again, at 34 ounces) has 108g of sugar and 400 calories.

    The Tazo clearly is worse for you.

    BUT NOT BANNED!

  • kinnath||

    half-liter bottles are a fraction more than 16 oz.

  • Zeb||

    What's a "g of calories"? Do you mean "Calories".

    Also worth noting is that 1 Calorie = 1000 calories.

  • Tman||

    Yeah, sorry, I didn't mean to add the "G" with the calorie count.

  • Enough About Palin||

    "they just completely ignore Starbucks drinks, some of which even at 16 ounces has almost twice the amount of calories and sugar than a normal soda."

    Because to Bloomberg, size matters!

  • The Dan||

    this gives me a tingling down my leg

  • EDG reppin' LBC||

    I'm debating between making chicken salad, or a classic peanut butter & honey sandwich. I'm not sure which to make. If only Mayor Bloomberg could tell me which one is best for me. All these choices are scary and confusing. I need someone smart to tell me what to do.

    Why do I have to make this choice?

  • Hyperion||

    I'll try to help.

    Did the chicken have a name?

    /Portlandian

  • some guy||

    Named chickens taste better. Possibly because most people have to be pretty hungry before they'll consider eating a pet.

  • ||

    UHh, no.

    Named chickens taste better because they were basted in the love of their artisan caretakers while they were raised.

  • Zeb||

    This is true. Well it's probably less the love and more the fact that they can move around and eat bugs and stuff instead of just grain, but close enough.

  • R C Dean||

    Well, their own pet, anyway.

    True story; a semi-retired rancher friend of Padron Dean would get a good-looking calf at auction and fatten it up personally to keep his freezer stocked. The last one was named "T-Bone".

  • some guy||

    I guess you don't have to be that hungry to steal someone else's pet and eat it?

    That rancher sounds like he knew what he liked and how to get it. I admire that.

  • sloopyinca||

    I made roast leg of lamb last night with a peppercorn/rosemary rub. Her name was Brownie and we had her since she was 4 weeks old.

    Tonight, we will have the last of our Cornish Cross chickens. She was a lazy hen that I called fatso because she would literally lay in the feeders. I went in the chick's coop yesterday to check their waterers and she had somehow snuck in there and was eating all of their starter feed, which is more than layer. I immediately grabbed her and twisted her neck until it was a foot longer than normal. I slaughtered her on our patio bar.

    BTW, we've got a duck sitting on a clutch of 20+ eggs. If anybody wants a duck, we're about to double our flock size (with these and the nine we have in a brooder).

  • ||

    Hmm. How would one go about obtaining said hypothetical ducks?

  • sloopyinca||

    I think it's easier to ship FedEx that beer is, so we may be able to pull this one off, JJ.

    The only question now is: you want a live duck or a dead (and processed) duck?

  • Ornithorhynchus||

    The ground beef I buy is always named Chuck.

  • some guy||

    Nice of the judge to do this the day before the ban goes into effect rather than months ago before businesses had sunk money into meeting the ban's requirements.

  • albo||

    He was away at fat camp.

  • prolefeed||

    It takes time for a lawsuit to get drawn up and get on the docket. This isn't necessarily the judge's fault.

  • some guy||

    I don't see any information about who challenged this law. Anybody have a source for this? Can a state supreme court judge issue an injunction independently?

  • prolefeed||

    RTFA: "You can read Tingling's ruling, which came in response to a lawsuit filed by groups representing merchants, restaurants, theaters, and soft drink manufacturers, here."

  • kinnath||

    From the earlier post:

    “I definitely believe it’s going to hurt my business ,” said Mary Cira of Pronto Pizza, who said she had to toss nearly a $1,000 worth of 20 ounce and 2 liter bottles of soda. She’ll also have to reprint her menus.

    Broken Windows squared.

  • prolefeed||

    You can't open a 2 liter bottle of soda and decant it into several 16 ounce cups?

    And why would she toss these out BEFORE the ban had taken effect, and just use them up and not reorder?

    The reprinting the menu part -- OK, that was a legit beef.

  • JD the elder||

    I have never run a pizza joint, but I suspect they'd rather use soda guns than worry about having half-empty bottles sitting around taking up space while they go flat. Dunno why she wouldn't have at least given them away to her employees or something, though.

  • sloopyinca||

    Yeah, even of the pizza shop 2 liter ban stayed in place, couldn't they get around it by saying that "a pizza has 8 servings, and if you divide up a 2 liter of cola into 8 servings, they will be less than 16 oz. each."

    After all, the whole ban was about portion size anyway.

  • Tonio||

    OK, some guy, the linked article didn't state when the merchants (et als) challenged this. So maybe this was a speedy ruling, maybe this wasn't. I'm celebrating the fact Bloomie was smacked down hard, rather than quibble about the timing.

    And while I'm sympathetic to the merchants who did incur out of pocket expenses preparing for the non-existent ban, it would have been prudent for merchants aware of this court challenge to have held on to their inventory and cups in anticipation of the ban being voided.

    Any actual lawyers know whether these merchants can recover their expenses from the city (legal fees, cups, inventory, etc)?

  • ||

    No alt-text?

    WTF, mate?!

  • Way Of The Crane||

    Alt Text= "The size soda Bloomberg needs to combat the drip caused by snorting amount of cocaine in front of each respective cup"

  • prolefeed||

    What the judge's ruling seems to be saying:

    1) Gotta have an ELECTED group of overlords telling you what to do.

    2) Gotta be a blanket ban with no loopholes, so even more onerous.

    Instead of "This is an unenumerated right you are trying to take away. This is absolutely no business of any level of government, period."

  • ||

    http://thenextweb.com/shareabl.....ke-wtf.jpg

    His sorry ass will be after those bottles next. I'm buying five, and I'm also stocking up on outrageously enormous plastic cups.

    Suck it, you prohibitionist prick.

  • sloopyinca||

    OK, so someone needs to go to this judge and say that since .223 bullets are legal, why is the state banning cartridges that hold more than 7 of them. Not to mention that NYC has extremely restrictive gun permitting and arbitrarily gives our CCW permits only to connected people.

    Seriously, this ruling should be used as a precedent in so many different ways.

  • prolefeed||

    Under this ruling's logic, the 7 bullet magazine limit was OK because it was done by an elected body and it applied to all types of bullets and all guns.

  • sloopyinca||

    Not necessarily. He said the correct place was the city council, but he still said the capricious and arbitrary nature of the ban made it completely inequitable.

    I bet if the city council did the same, he'd still have grounds to strike it down.

  • sarcasmic||

    I believe there is an exemption for .22 rimfire rifles with a tubular magazine.

  • My Dog Bites Better Than Yours||

    The police are not exempt from the limit. They can only have 7+ mags through selective enforcement.

    I think this will be a big issue when (if?) it comes to court.

  • OldMexican||

    Assorted liberal answers you can use to post replies in liberal blogs regarding today's headline:

    Judge Blocks Bloomberg's Big Beverage Ban


    * He just wants kids to be fat!
    * He's a shill for Big Beverage!
    * He's clearly a rightwing nut!
    * He's a science denier!
    * He's legislating from the bench! In favor of Big Beverage!
    * He wants people to develop cavities!

    Disclosure:
    You are authorized to use any of these replies at your leisure. Our aim is for you not to spend time thinking, because (we all liberals know) thinking hurts, which explains the Amerikan Pulbic Skool Seestem

  • ||

    LULZ! Theres no l in pubic!

  • Archduke Pantsfan||

    Wonder if this block was put into effect before the mayor taped his interview with David Letterman for tonights show?

  • albo||

    Check out the last page of the ruling. He uses "Leviathan!"

  • ||

    So the judge did not say that nanny statism is wrong in principle. In fact, "it [the city council] alone has the authority to legislate as the board seeks to do here."

    Now is a good time to thank a rightwinger for the underlying principle according to which government should be a parent concerned with our welfare from the cradle to the grave. Remind that fool that leftists and other bleeding hearts would merely turn his favorite foster daddy into a foster mommy, too. In short, communitarian conservatism eats itself.

  • sloopyinca||

    I didn't read it that way at all. He just said these type of rulings are the province of the City Council. He also said that it was arbitrary and capricious and completely unfair to do what they did.

    He went after the law regulation on a lot more than procedural grounds, IMO.

  • ||

    Indeed, the judge attacked the procedural mistakes of Bloomberg and his Board of Health in part by trampling "the respondents' interpretation of the authority granted to the Board by the New York City Charter". Master Bloomberg wants to comingle legislative and executive powers, as you suggested with "law regulation".

    But the judge affirmed an imaginary authority of the city council to play mommy, and it's mommy who gets to choose the baby's bottle, assuming that mommy doen't choose breast feeding, instead. (Breast feeding in this context would be communal kitchens, I think, and now I'm reminded again that I loathe militaries as much as I loathe leftists.)

  • R C Dean||

    Haven't read it, but it could be two separate and independently sufficient grounds from striking the ban.

  • Ornithorhynchus||

    This ruling is going to be appealed. By listing several different grounds for striking down the law, the judge increases the likelihood that his ruling will stand even if a higher court reverses his decision on one of the grounds.

  • T. Walls||

    7-11, Never Forget!

  • SumpTump||

    lets hit it up jd, oh yeah!

    www.EliteAnon.tk

  • JMos||

    I don't usually drink large sodas but I plan on getting one tomorrow and drinking it outside of city hall just to say "fuck you" to Bloomberg.

  • GroundTruth||

    I can't stand the stuff, but if I lived in NYC, I think I'd join you.

    What is it about NYC mayors turning into fascist pigs?

  • CPBrown||

    I'm feeling a Tingling up my leg !

  • ||

    Chris Matthews, is that you?

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