Judge halts Bloomberg’s large soda ban one day before it's set to go into effect

March 12, 2013

Justice Milton Tingling of state Supreme Court in Manhattan called the ban 'arbitrary and capricious.' Bloomberg said that he would not seek the City Council’s approval to try and enforce the ban, as the chances of passage would be low.

By Erin Durkin
NEW YORK DAILY NEWS

Updated: Tuesday, March 12, 2013, 4:45 AM

Mayor Bloomberg saw his ban on large sugary sodas overturned on Monday.     Lombard/News

Mayor Bloomberg 's controversial ban on large, sugary sodas fell flat Monday when a judge shredded nearly every legal argument advanced by the mayor’s lawyers and tossed the regulation out.

The sweeping ruling, a day before the ban was to take effect, was a stinging setback for Bloomberg, who won national acclaim in pushing the regulation — and condemnation that he was creating a nanny state.

Manhattan Supreme Court Justice Milton Tingling dismissed the rule as “arbitrary and capricious,” with too many loopholes and exemptions, siding with soda companies and business groups that had taken the city to court.

Tracing the Board of Health’s powers more than 300 years to the late 1600s under Britain’s King James II, the judge said the city agency simply had no authority to issue it. Only the City Council had that power, he said. “One of the fundamental tenets of democratic governance here in New York, as well as throughout the nation, is the separation of powers. . . . No one person, agency, department or branch is above or beyond this,” the judge said.

Judge Milton A. Tingling put the kibosh on Mayor Bloomberg's ban one day before it was to go into effect.   Rebecca McAlpin for New York Daily News

The rule “would not only violate the separation of powers doctrine, it would eviscerate it,” the judge said.

The rule would have banned sales of sugary sodas larger than 16 ounces by restaurants, movie theaters, pushcarts and sports arenas.

The decision appeared to stun Bloomberg, who pushed the regulation to attack the rising tide of obesity. He vowed to appeal. But across the city, restaurant and pizzeria owners who had denounced the regulation as intrusive and costly rejoiced.

In his 37-page decision, Justice Tingling seized on the fact that the rule would have applied only to food-serving businesses regulated by the city, such as restaurants and movie theaters, and not to state-regulated establishments, like 7-Eleven stores.

He also pointed out that it would have applied to some sweetened drinks, such as sodas, but not others. Milkshakes, for example, would have been exempt.

“The loopholes in this rule effectively defeat the stated purpose of the rule,” the judge said.

“It is arbitrary and capricious because it applies to some but not all food establishments,” and because it applies to some sweetened drinks but exempts others, he wrote.

The judge also said that only the legislative branch of city government, the Council, had the power to approve such a ban. The Health Board can promote rules to prevent the spread of communicable diseases but it has no power to attack obesity, he said.

Bloomberg rejected the judge’s arguments. “Anytime you adopt a groundbreaking policy, special interests will sue. That’s America,” a somber Bloomberg said at City Hall. “We believe that the judge’s decision was clearly in error, and that we will prevail.”

He said adopting the rule — the latest and most controversial of his policies to improve public health — made sense.

“With so many people contracting diabetes and heart disease, with so many children who are overweight and obese, with so many poor neighborhoods suffering the worst of this epidemic . . . it would be irresponsible not to,” he said.

“People are dying every day. This is not a joke,” he said. “We’re talking about lives versus profits.”

Businesses groups hailed the decision.

“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,” said Chris Gindlesperger, spokesman for the American Beverage Association, one of the plaintiffs.

Matt Greller of the state chapter of the National Association of Theatre Owners said the group was “elated” by the ruling.

“This was all about power. The court rejected the mayor’s attempt to unilaterally tell New Yorkers what to drink, and where to drink it,” he said.

Andrew Moesel of the New York Restaurant Association predicted any appeal would fail. “The ruling makes it clear they don’t have a leg to stand on,” he said. “We feel like we won on all counts.”

He also pointed out that it would have applied to some sweetened drinks, but not others.

Restaurant owners who had been scrambling to comply with the edict — buying new soda glasses, and updating signs and menus — were thrilled.

Jameel Ali, 36, a manager at the Carve deli at Eighth Ave. and 48th St., hailed the ruling as “good for us and good for customers.”

“Now we’ll get to keep all of our sodas — at least for now,” he said, standing in front of a refrigerated display of 20-ounce sodas that would have been outlawed under the ban.

At a nearby Subway restaurant, manager Om Kohli said the larger drinks mean bigger profits.

“I was about to put the new sign up. I guess I don’t have to now,” said Kohli. “It’s good for business. People would be glad to have options.”

With Tina Moore and Edgar Sandoval

edurkin@nydailynews.com