Drink up: Appeals court upholds ruling striking down NYC Big Gulp ban

They may take our lives, but they will never take…our FANTA!

New York City’s plan to ban large sugary drinks from restaurants and other eateries was an illegal overreach of executive power, a state appeals court ruled on Tuesday, upholding a lower court decision in March that struck down the law.

The law, which would have prohibited those businesses from selling sodas and other sugary beverages larger than 16 ounces, “violated the state principle of separation of powers,” the First Department of the state Supreme Court’s Appellate Division said in a unanimous decision.


The appeals court echoed a court’s March decision, which determined that the New York City Board of Health overstepped its authority when it teamed up with Mayor Michael Bloomberg to restrict the sale of sugary drinks over 16 oz. at “restaurants, delis, fast-food franchises, movie theaters, stadiums and street carts, but not to grocery stores, convenience stores, corner markets, gas stations and other similar businesses.”

The opinion finds the Big Gulp ban was an inappropriate action for the health board for several reasons. Its carve-outs indicate the ban was not made strictly for health reasons, but with economic considerations in mind. The board had not previously designated sugary drinks as inherently unhealthy, making the regulation thereof outside the board’s health expertise purview.

But the most important factor, for New Yorkers and the legislative process, was the fact that “regulations concerned ‘an area in which the legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions.'”

The government’s argument flowed, the court states, from the idea that the “Board of Health has been vested with the power to act on any health related manner,” which the court calls a “fundamental misunderstanding” of administrative vs. legislative power. “An agency’s attempt to ‘take it upon itself to fill the vacuum and impose a solution of its own’ is improper.”


In other words, when the elected legislature is “unwilling to act” in a way an executive or administrative board wishes it would, it’s not all right to “take whatever administrative steps that I can in order to do right by the American people.”

But hey, what’s a unanimous appeals court compared with a super-smart executive who knows what’s best for us?

Bloomberg responds, quite cranky that he might actually have to try convince members of the voting public and a legislature of the wisdom of his views:

Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12th, more than 2,000 New Yorkers have died from the effects of diabetes. Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes – both of which are disproportionately linked to sugary drink consumption. Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic.”

But don’t get too excited. The court does not contest the legislature’s power to make a rule banning Big Gulps and relies on a 1987 ruling that said the state health board was overstepping its bounds to ban smoking in most businesses and public buildings. The state legislature later passed such a ban in 2003 after public opinion shifts made it possible. The hope of soda-drinkers in New York lies in the fact that Bloomberg’s term is nearly up, and because he’s not accustomed to making a convincing case for his crusades, he’s not equipped to turn the fructose tide.


After that? (With apologies for the curse word.)


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David Strom 6:00 PM | May 28, 2024