Beverage Ban Blocked

NYC nannying

Since May 2012, when Mayor Michael Bloomberg unveiled his improbable plan to shrink New Yorkers' waistlines by shrinking their drink sizes, he has argued that his big beverage ban would not meaningfully interfere with people's choices but nevertheless would have a substantial impact on calorie consumption. That contradiction, along with the busybody billionaire's sweeping view of what regulators may do in the name of promoting public health, proved to be his undoing in March.

Justice Milton Tingling of State Supreme Court in Manhattan ruled that Bloomberg's drink diktat, which would have imposed a 16-ounce limit on servings of sugar-sweetened beverages, was so riddled with loopholes that it qualified as "arbitrary and capricious" under state law. Responding to a lawsuit by soft drink makers and sellers, Tingling also concluded that the Bloomberg-appointed New York City Board of Health exceeded its legal authority by enacting the mayor's proposal, which he should have brought to the city council instead.

The soda serving ceiling applied to restaurants, food carts, and snack stands but not supermarkets or convenience stores. Consequently, Tingling noted, "a person [who] is unable to buy a drink larger than 16 oz. at one establishment…may be able to buy it at another establishment…located right next door." That drink might even be 7-Eleven's Big Gulp, the very epitome of the effervescent excess decried by Bloomberg.

Even if this customer stays at the business where the one-pint limit applies, Tingling observed, "no restrictions exist on refills, further defeating the Rule's stated purpose." Similarly, the city decreed that people may not order a 20-ounce coffee with more than three teaspoons of sugar—but left them free to add as much sugar as they like after they take possession of the drink. It also made exceptions for milk-based beverages, fruit juices and smoothies, and alcoholic beverages, all of which typically have more calories per ounce than soda.

Had the regulations made more sense, Tingling said, they still would have violated the separation of powers between the legislative and executive branches of government. To accept the board of health's view of its powers, he wrote, would "create an administrative Leviathan" with an "authority to define, create, mandate and enforce limited only by its own imagination."