From the NY Times
A judge struck down New York’s limits on large sugary drinks on Monday, one day before they were to take effect, in a significant blow to one of the most ambitious and divisive initiatives of MayorMichael R. Bloomberg’s tenure.
In an unusually critical opinion, Justice Milton A. Tingling Jr. of State Supreme Court in Manhattan called the limits “arbitrary and capricious,” echoing the complaints of city business owners and consumers who had deemed the rules unworkable and unenforceable, with confusing loopholes and voluminous exemptions.
The decision comes at a sensitive time for Mr. Bloomberg, who is determined to burnish his legacy as he enters the final months of his career in City Hall, and his administration seemed caught off guard by the decision. Before the judge ruled, the mayor had called for the soda limits to be adopted by cities around the globe; he now faces the possibility that one of his most cherished endeavors will not come to fruition before he leaves office, if ever.
The mayor’s plan, which he pitched as a novel effort to combat obesity, aroused worldwide curiosity and debate — and the ire of the American soft-drink industry, which undertook a multimillion-dollar campaign to block it, flying banners from airplanes over Coney Island, plastering subway stations with advertisements and filing the lawsuit that led to the ruling.
Mr. Bloomberg said he would immediately appeal, and at a quickly arranged news conference, he fiercely defended the rationale for the rules, which would have limited the size of sugary drinks to 16 ounces at restaurants, theaters and food carts.
“I’ve got to defend my children, and yours, and do what’s right to save lives,” the mayor said. “Obesity kills. There’s no question it kills.”
He added, “We believe that the judge’s decision was clearly in error, and we believe we will win on appeal.”
The plan, unveiled last May, was hailed by many public health officials as a breakthrough in the effort to combat the effects of high-calorie, sugary drinks on the public’s health. Similar proposals have been put forward in Los Angeles and Cambridge, Mass., even as the idea of a “war on soda” has become regular fare for late-night comedians.
Coffee shops and restaurants around the city had already begun editing menus, retraining employees and warning customers of the coming changes in the sorts of drinks they could and could not buy. Dunkin’ Donuts, for instance, told its employees they could no longer add sugar to large coffees.
The measure was already broadly unpopular: In a New York Times poll conducted last August, 60 percent of city residents said it was a bad idea for the Bloomberg administration to pass the limits, although Bronx and Queens residents were more likely than Manhattan residents to oppose it.
In his ruling, Justice Tingling concurred with much of the beverage industry’s legal arguments. He said the Board of Health, which is appointed by the mayor, had overreached in approving the plan, and wrote that the City Council was the only legislative body with the power to approve such a far-reaching initiative.
The administration, Justice Tingling wrote, had interpreted the board’s powers broadly enough to “create an administrative Leviathan,” capable of enacting any rules and “limited only by its own imagination.” (Sounds a bit like the EPA to me.)
The judge also criticized the rules themselves, noting they would apply only to certain sugared drinks — dairy-based beverages like milkshakes, for instance, would be exempt — and be enforced only in certain establishments, like restaurants and delis, but not others, like convenience stores and bodegas. The rules, the judge wrote, would create “uneven enforcement, even within a particular city block, much less the city as a whole.”
Lawyers for the Bloomberg administration said on Monday that it remained confident the Board of Health — which has been the conduit through which the mayor has pushed through his boldest public health initiatives, including limits on trans fats in restaurants — had “the legal authority and responsibility” to address obesity in the city.
Mr. Bloomberg has some experience in prevailing over legal challenges to his public health initiatives, including his requirement that fast food menus include calorie counts.
But there was no immediate consensus on Monday on the likelihood of a reversal of Justice Tingling’s ruling.
Ross Sandler, a professor at New York Law School, said city laws deemed “arbitrary and capricious” had frequently been reinstated upon appeal. But Ronald John Warfield, a civil and criminal lawyer who sued the Bloomberg administration over its cigarette-taxing policy, said he expected the appeal to fail.
“Their intention may be good,” Mr. Warfield said of the city. “They went about this with an imperial hand.”
The soft drink industry had viewed the fate of the city’s rules as a global bellwether on government regulation of sugary drinks.
In court, the industry’s lawyers, from the high-powered corporate firm Latham & Watkins, presented their argument in high dudgeon, calling the rules “ludicrous” and dreamed up by “scientists in the room, working with the mayor, creating a regulation here that is going to cost people a ton of money.” The industry also suggested that small businesses would be unfairly hurt by the rules.
Lawyers for the administration offered a more subdued, highly technical rebuttal that only occasionally addressed the broader public health reasons for the plan. At one point, a city lawyer who had mumbled his words was asked by the court reporter to repeat his points, because she could not hear him.
On Monday, a spokesman for the American Beverage Association said that the court decision “provides a sigh of relief.”
“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,” the spokesman, Christopher Gindlesperger, said.
It is unclear if the appeal of the case will be resolved before Mr. Bloomberg leaves office at the end of this year. His would-be successors are mixed in their views of the measure and may not share his zeal on the issue.
The mayor appears increasingly preoccupied with his legacy, and recently hired two public relations advisers — a former Times editor, Arthur Pincus, and a former television reporter, Andrew Kirtzman — to shape the public perception of the Bloomberg era.
Asked on Monday if he was concerned that a drawn-out legal battle over the soda limits could spill into the administration of a successor who does not favor them, Mr. Bloomberg, sounding a bit irked, muttered, “All of our time is running out,” before saying, “I don’t know who is going to be my successor.”
The mayor added: “People are dying every day. This is not a joke. This is about real lives.”
Now the city will have to spend a ton of money trying to appeal ... this should be a great way to spend taxpayer money, huh?