Just one day before the controversial ban on “giant soda” was set to impact New York City, a trial judge issued an injunction halting the law from taking effect as scheduled on March 12.
The New York City Board of Health approved the law last fall which banned the sale of beverages “sweetened with sugar or another caloric sweetener that contain more than 25 calories per 8 fluid ounces,” as applied to drinks sold in containers larger than 16 ounces.
Industry groups including the American Beverage Association and the National Restaurant Association challenged the law, arguing it was an unconstitutional violation of the separation of powers doctrine because the Board exceeded its authority and impermissibly trespassed on legislative jurisdiction.
After reviewing the history of the Board of Health – beginning with its creation in the 1698 City charter and detailing each revision to the current date – Manhattan Supreme Court Justice Judge Milton A. Tingling agreed.
“In looking at the history of the Charter, the intention of the legislature with respect to the Board of Health is clear. It is to protect the citizens of the city by providing regulations that prevent and protect against communicable, infectious, and pestilent diseases,” he wrote.
Major amendments to the Charter and the Board’s power occurred at times of heightened public illness, Judge Tingling wrote, when a rise in immigration brought new diseases to the city and at the time of the AIDS epidemic in 1989.
“However, one thing not seen in any of the Board of Health’s powers is the authority to limit or ban a legal item under the guise of ‘controlling chronic disease,’ as the Board attempts to do herein. The Board of Health may supervise and regulate the food supply of the City when it affects public health, but the Charter’s history clearly illustrates when such steps may be taken, i.e., when the City is facing imminent danger due to disease. That has not been demonstrated herein.”
Not only did the Board overstep its bounds, Judge Tingling said, but the law itself was poorly written and “is laden with exceptions based on economic and political concerns.” Convenience stores like 7-11 are not covered by the law as part of a group of businesses exempt from all Board of Health regulations, for example, and drinks that contain 51 percent milk – even high-fat milkshakes and lattes – are also exempt.
Even affording the Board “every degree of judicial deference,” Judge Tingling said the law “is 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 refills, defeat and/or serve to gut the purpose of the Rule.”
To uphold the law would “not only violate the separation of powers doctrine, it would eviscerate it,” he concluded. “Such an evisceration has the potential to be more troubling than sugar sweetened beverages.”
To read the order in New York Coalition of Statewide Hispanic Chambers of Commerce v. The New York City Board of Health and Mental Hygiene, click here.
Why it matters: The decision “provides a sigh of relief” for the soft drink industry and retailers impacted by the law, Christopher Gindlesperger, a spokesperson for the American Beverage Association, told The New York Times. “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,” he said. But the fight isn’t over. Mayor Michael R. Bloomberg, who championed the law, immediately vowed to appeal the decision. “We believe that the judge’s decision was clearly in error, and we believe we will win on appeal,” Mayor Bloomberg said at a press conference about the court’s opinion. “People are dying every day. This is not a joke. This is about real lives.”