- The Washington Times - Monday, March 11, 2013

New York Mayor Michael R. Bloomberg’s ban on big sugary sodas fell flat Monday after a state judge invalidated the rule.

New York Supreme Court Justice Milton Tingling in Manhattan said the regulations, which were set to take effect Tuesday, are “fraught with arbitrary and capricious consequences.”

“The court finds that the regulation herein is laden with exceptions based on economic and political concerns,” the judge wrote in his 36-page opinion.

Since its conception, Mr. Bloomberg’s bid to regulate consumption of sugary drinks to help fend off the city’s climbing obesity rates has been criticized as an example of a government “nanny state” run amok while becoming a focus of jokes by late-night television talk shows and radio hosts.

Still, the New York ban had inspired similar proposals in cities and states across the country.

A coalition of labor unions, along with theater, beverage and grocery trade associations and the New York Statewide Hispanic Chamber of Commerce, filed a request for a permanent restraining order in October.

SEE ALSO: N.Y. Mayor Michael Bloomberg: Cola ban will help the poor ‘take care of themselves’

“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 American Beverage Association said in a Monday 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.”

But Mr. Bloomberg said he would appeal the decision and predicted that the rule ultimately would pass judicial muster, describing the city’s board of health as a “pioneer” and noting that the federal government ultimately followed the board on decisions such as banning lead paint.

“We have a responsibility as human beings to do something, to save each other,” Mr. Bloomberg said after the ruling. “While other people will wring their hands over the problem of sugary drinks, in New York City, we’re doing something about it.”

The rule bans certain venues, including restaurants, theaters and sports parks, from serving sugary drinks in containers larger than 16 ounces. At the same time, other venues such as convenience stores and supermarkets are exempt from the restriction.

“[I]t applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweetener and/or calories on suspect grounds, and the loopholes inherent in the rule, including but not limited to no limitations on refills, defeat and/or serve to gut the purpose of the rule,” Mr. Tingling wrote.

The judge also said the ban should have been approved by the elected City Council, instead of the city health board, whose members are appointed by the mayor.

SEE ALSO: NYC soda inspectors get 17-ounce cups to ensure size compliance

Mr. Bloomberg, acting with the New York City Department of Health, argued that the cap on drink sizes was needed to combat an “obesity epidemic” in New York City. Attorneys for the city argued in their brief that 57.5 percent of adults and 40 percent of children living in the city are overweight or obese, while more than a half-million residents suffer from diabetes.

Dr. Thomas Farley, commissioner of the New York City Department of Health and Mental Hygiene, said in a statement that the judge’s decision “threatens the health of New Yorkers.”

The department estimates that care for obesity-related illnesses in the city costs government health programs as much as $2.8 billion annually.

“Without a portion cap on sugary drinks, it would be harder to tackle an obesity epidemic that kills more New Yorkers than anything other than smoking and causes misery for many thousands more who suffer from heart disease, diabetes and other debilitating illnesses,” Mr. Farley said. “Sugary drinks are a leading cause of this epidemic.”

The ruling was handed down as an eleventh-hour reprieve for fast-food restaurants, which had been scrambling to comply with the deadline. McDonald’s Corp. and Dunkin’ Donuts told Reuters that instead of sweetening their large coffees, customers would be either handed sugar packets on the side or directed to the self-serve stand.

Mr. Bloomberg, who ran as a Republican before becoming an independent in 2007, has made public health and combating obesity central themes of his administration. The mayor also has championed laws to ban smoking in public, including outdoor parks; limiting the use of trans fats, and requiring restaurant chains to show calorie counts.

“Anytime you adopt a ground-breaking policy, special interests will sue,” said Mr. Bloomberg. “That’s America.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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