A ban on sugary drinks in NYC that was set to take effect today was put on hold by Justice Milton A. Tingling Jr. of State Supreme Court in Manhattan yesterday. The much discussed and debated law would have put a 16-ounce cap on sweetened bottled drinks and fountain beverages sold at city restaurants, delis, movie theaters, sports venues and street carts. The size limit applies to beverages that have more than 25 calories per 8 ounces. It doesn’t include 100% juice drinks or beverages with more than 50% milk.
In his opinion, Justice Tingling first addressed whether the rule exceeded the authority of the NYC Department of Health and Mental Hygiene and impermissibly trespassed on legislative authority. The court examined four factors – whether the regulation is based upon other factors such as economic, political or social concerns; whether the regulation was created on a clean slate without the benefit of legislative guidance; did the regulation intrude upon ongoing legislative debate and did the regulation require the exercise of expertise on behalf of the body passing the legislation. After a lengthy discussion the court found that three of the four factors weighed against the city and that the Department had exceeded its authority. To find otherwise, the court said, the judge wrote, “would leave [NYC] the authority to define, create, mandate and enforce limited only by its own imagination,” and “create an administrative Leviathan.”
In addition, the court found that the rule was arbitrary and capricious. Among other things, the court pointed to the fact that the rule applies to only certain sugared drinks — beverages with a high milk content, for instance, would be exempt — and would apply only to some food establishments, like restaurants, but not others, like convenience stores. “It applies to some but not all food establishments in the city,” Justice Tingling wrote. “It excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories.” The judge also wrote that the fact that consumers can receive refills of sodas, as long as the cup size is not larger than 16 ounces, would “defeat and/or serve to gut the purpose of the rule.”
The Mayor has vowed to appeal and everyone involved likely needs to sugar up for what may be a long battle ahead. However, it’s worth remembering that past battles over food and obesity have often been resolved through self-regulation. Although some municipal requirements for calorie posting were struck down, many companies began voluntarily providing the information (and many more will likely have to do so under the terms of a now delayed FDA final rule on that subject). Through the auspices of the CFBAI
and other like-minded organizations many food companies have restricted advertising of certain products to children. Whether similar efforts arise here remains to be seen.