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.