A Legal Guide to the Soda Ban Ruling
By Jacob Gershman
- Getty Images
- Bottles of soda are displayed on a shelf in New York in January.
Q: What was the Bloomberg administration trying to ban?
A: The sale of sugary drinks from fountain or prepackaged containers larger than 16 fluid ounces (33% larger than a can of soda). The ban would have applied to all non-diet sodas, energy drinks, fruit drinks or sweetened teas that are less than 50% milk or milk substitute and have more than 25 calories for every 8 ounces. The rule covered sit-down and fast food restaurants, delis, movie theaters, stadiums and arenas, mobile food carts, and imposed a fine of $200 for each violation.
Q: Who was trying to stop it?
A: The American Beverage Association, the National Association of Theater Owners of New York State, a beverage workers union, the New York Korean-American Grocers Association and the New York Statewide Coalition of Hispanic Chambers of Commerce, among other groups.
Q: What does the ruling mean?
A: New York Supreme Court Judge Milton Tingling didn’t just halt the soda ban, he invalidated it. That means unless he’s overruled by a higher state court — assuming the Bloomberg administration appeals — the city can’t enforce it. The city could start again and try to address the judge’s concerns. For example, it could get a sign off from the City Council with a legislative vote. But as it stands, the ban is dead.
Q: Why did the judge strike it down?
A: The judge agreed with the challengers on two big points: that the Bloomberg administration violated separation of powers doctrine and that the ban was “riddled with arbitrary exclusions, exemptions, and classifications,” as the petitioners claimed.
Q: What was the separation of powers problem?
A: The challengers claimed that the city had usurped the power of the City Council by acting unilaterally, “not only in the absence of any legislative guidance, but in the face of legislative rejections of efforts to target these same beverages.”
Judge Tingling agreed, stating that the City Charter does not grant the city’s health department the “sweeping and unbridled authority to define, create, authorize, mandate and enforce” health codes governing food establishments and food preparation.
The judges cites a 1987 ruling by New York’s highest court (Boreali v. Axelrod) that struck down a state regulation that would have banned smoking in most indoor public places.
That ruling basically said that the executive branch can’t impose health regulations from a clean slate but requires “legislative guidance.”
That 1987 decision “discouraged state and local administrative agencies from regulating areas without legislative guidance and authorization. But obviously, it hasn’t stopped them because there’s still not a clear line,” Peter Millock, a Nixon Peabody partner, told Law Blog. Mr. Millock was counsel to the New York State Health Department at the time the Boreali decision was handed down.
Q: What did the judge find arbitrary and capricious about the soda ban?
A: The plaintiffs noted that the ban excludes:
[W]ine, beer, other alcoholic drinks, fancy mochas and lattes, certain juices, donuts, buttered popcorn, pork rinds, licorice, and a broad array of candy and other desserts, have high caloric and sugar content and are consumed primarily for enjoyment rather than nutrition. One person’s “empty calories” are another person’s source of enjoyment.Judge Tingling agreed, concluding that the rule was arbitrary and capricious in that it applied “to some but not all food establishments in the city” and also because it “excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds.”
He also pointed to loopholes, including the city’s allowance for refills, that “defeat and/or serve to gut the purpose of the rule.”
Q: But how come the Bloomberg administration was allowed to ban artificial trans fats in restaurant food in 2006?
A: The trans fat law was ratified by the City Council without much in the way of organized opposition, compared to the well-financed effort waged by the soda ban challengers.
Still, some say the judge got it wrong. “The authority of the department of health is the exact same authority [in both cases]. It doesn’t make sense to me that the trans fat ban is legal, and they struck this down,” said Jennifer Pomeranz, director of legal initiatives at Yale University’s Rudd Center for Food Policy & Obesity.
Erica Orden contributed to this story.
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LI Confidential
> Stop scratching on holidays
Stop scratching on holidays
Published: June 1, 2012
Off Track Betting in New York State has been racing into a crisis called shrinking revenue. Some people have spitballed a solution: Don’t close on holidays.
New York State Racing Law bars racing on Christmas, Easter and Palm Sunday, and the state has ruled OTBs can’t handle action on those days, even though they could easily broadcast races from out of state.
“You should be able to bet whenever you want,” said Jackson Leeds, a Nassau OTB employee who makes an occasional bet. He added some irrefutable logic: “How is the business going to make money if you’re not open to take people’s bets?”
Elias Tsekerides, president of the Federation of Hellenic Societies of Greater New York, said OTB is open on Greek Orthodox Easter and Palm Sunday.
“I don’t want discrimination,” Tsekerides said. “They close for the Catholics, but open for the Greek Orthodox? It’s either open for all or not open.”
OTB officials have said they lose millions by closing on Palm Sunday alone, with tracks such as Gulfstream, Santa Anita, Turf Paradise and Hawthorne running.
One option: OTBs could just stay open and face the consequences. New York City OTB did just that back in 2003. The handle was about $1.5 million – and OTB was fined $5,000.
Easy money.
See NY Const. Art. 1, Sec. 3, history of NYC OTB and NY PML Sec 109 previously Sec. 105
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