A judge called a halt Monday to New York City Mayor Michael Bloomberg’s controversial plan to ban the sale of sugary beverages in containers larger than 16 ounces.
Manhattan Supreme Court Justice Milton Tingling (See Profile) agreed in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, 653584/12, with a coalition of business groups and unions who argued that the city’s Board of Health lacked the power to adopt the so-called "portion cap" in amendments to the city health code adopted last year.
The rule was to have gone into effect today, although the city declared a three-month grace period before it would start fining violators.
The Bloomberg administration immediately said it would appeal.
In a press conference yesterday, Bloomberg said the ban would be "voluntary until we win on appeal," and suggested that city eateries voluntarily stop selling drinks larger than 16 oz. "I don’t think it’ll hurt your bottom line," he said. "We’re talking about lives versus profits."
Tingling in his decision noted that Health Code §81.53 was adopted verbatim by the Board of Health based on language proposed by the mayor’s office to combat obesity, particularly among young people.
Opponents argued that while obesity is a worrisome public health problem, its links to oversized and cheap sodas typically sold by fast-food restaurants and convenience stores is not as clear-cut as Bloomberg portrays it.
Tingling acknowledged that obesity is a "serious issue" but he said his duty was to judge the legality of the measure.
He found guiding precedent in both Boreali v. Axelrod, 71 NY2d 1 (1987), and American Kennel Club v. City of New York, 13587/89 (1989), to support the petitioners’ argument that the Board of Health, whose members are appointed by the mayor, had strayed into territory belonging to the elected City Council.
In Boreali, restaurateurs challenged the state Public Health Council’s rules prohibiting smoking in most public places. In American Kennel Club, the city’s Department of Health had tried to ban pit bulls.
In both instances, courts ruled that the health boards’ actions intruded on powers reserved for other administrative bodies.
In the issue before him yesterday, Tingling traced the powers invested in city government under its various charters, beginning with the Dongan Charter of 1686 and concluding with charter revisions in 2012.
He said the charters have all afforded the city’s Board of Health "very broad" powers over public health and over what food the public eats. The charters allowed for the destruction of any foods determined by the Board of Health to be unwholesome.
"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 [with the beverage ban]," Tingling wrote. "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."
The restriction on the consumption of soda "is the province of the people’s elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing interests," Tingling wrote, quoting Boreali.
The legality of the health code is further crippled by the "arbitrary and capricious consequences" that enforcing it would create, the judge wrote.
"The loopholes in this rule effectively defeat the stated purpose of this rule," he said.
The Big Gulp sold by 7-11, for instance, would be exempt under the code because regulation of convenience stores, and that of other establishments, are set under a memorandum of understanding with the state that would bypass the city’s code.
In addition, Tingling said that by not extending the portion limit to refills, where offered, could defeat the purpose of the rule entirely at some establishments.
"The simple reading of the Rule leads to the…acknowledged uneven enforcement within a particular City block, much less the City as a whole," Tingling said.
The judge granted the plaintiffs’ petition and issued an order permanently enjoining the city from enforcing the cap contained in §81.53 of the city’s Health Code.
Corporation Counsel Michael Cardozo said in a statement yesterday that he is confident the portion limit will ultimately be upheld.
"This measure is part of the City’s multi-pronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year, and we believe the Board of Health has the legal authority—and responsibility—to tackle its leading causes," he said.
In addition to the coalition of Hispanic Chambers of Commerce, plaintiffs included the New York Korean-American Grocers Association, the Soft Drink and Brewery Workers Association, Local 812, International Brotherhood of Teamsters, the National Restaurant Association, the National Association of Theatre Owners of New York State and the American Beverage Association.
"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 statement yesterday. "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."
Lead attorneys for the plaintiffs were James Brandt of Latham & Watkins, Steven Molo of MoloLamken, Clifford Chen of Watkins, Bradley & Chen and James Featherstonhaugh of Featherstonhaugh, Wiley & Clyne in Albany.
Mark Muschenheim, a senior counsel in the city’s corporation counsel’s office, argued on the city’s behalf.
At the press conference, Bloomberg said the judge misinterpreted the precedent for the Board of Health’s ability to regulate. "The Board of Health’s limit on the serving size of sugary drinks does not limit anyone’s consumption; it just requires them to think about whether they really want more than 16 ounces."
Joel Stashenko is a reporter for the New York Law Journal, a Legal affiliate