New York City’s last ditch effort to save its supersize “soda ban” came up empty at the end of last month when the New York Court of Appeals held that the city health board lacked the regulatory authority to limit the sales of extra-large sugary drinks in the city.  The controversial and well-publicized “soda ban,” championed by former NYC mayor Michael Bloomberg, attempted to limit to 16 ounces the size of sugary drinks sold in restaurants, delis, food carts, movie theaters, and sporting events in the city. 

With strong opposition from soft drink manufacturers and retailers and the public, the soda ban faced significant challenges out of the gate.  As we reported in 2013, a New York appeals judge and panel invalidated the regulation, holding that it violated the separation of powers doctrine.  Undeterred, the Bloomberg Administration appealed to the New York Court of Appeals, the state’s highest court, but it issued the final 4-2 decision striking down the regulation because the Board of Health “exceeded the scope of its regulatory authority by adopting the Portion Cap Rule.”  Two judges dissented, arguing that the court’s separation-of-powers decision “curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century.” 

Now, Mayor Bill DeBlasio must decide whether to try to push a similar soda ban through the New York City Council, the city’s legislative body.  Judge Piggott, writing the opinion for the Court of Appeals, noted that the City Council was the governmental body in the best position to address such a ban. 

June has been a good month for the soda industry, with the NYC decision coming on the heels of the failure of a California senate bill, SB1000, that would have required warning labels on sodas and other sugary drinks.  Still, cities like San Francisco are considering a sugary drink tax measure on the ballots this November. Even though no city has ever successfully passed a tax on sugary beverages, the soda industry’s fight appears to be far from over.