March 12, 2013

To mayor, NYC soda ruling just 'temporary setback'

The Associated Press

NEW YORK — Despite Mayor Michael Bloomberg's bullishness, political realities and legal questions make for an uncertain future for one of the premier pieces of his legacy: a now-blocked ban on supersized sugary drinks.

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In this March 8, 2013 file photo, a Coca-Cola poster about the city's anticipated beverage ban is displayed at a pizza shop at New York's Penn Station. New York City's groundbreaking limit on the size of sugar-laden drinks has been struck down by a judge shortly before it was set to take effect. The restriction was supposed to start Tuesday, March 12, 2013. The rule prohibits selling non-diet soda and some other sugary beverages in containers bigger than 16 ounces. It applies at places ranging from pizzerias to sports stadiums, though not at supermarkets or convenience stores. (AP Photo/Bebeto Matthews)

The city lost no time Tuesday getting started on the next round of the fight after a judge nixed the first-of-its-kind regulation. Bloomberg called the strongly worded court ruling a "temporary setback" and emphasizing that the city is confident about winning an appeal. He predicted that in the meantime, the novel regulation would become a bellwether in the national fight against obesity.

"I don't think there's any doubt that momentum is moving in our direction," he said after convening a thicket of news cameras at a Manhattan diner that is voluntarily complying with the stricken-down rule.

While the city has ultimately prevailed in some similar cases, legal experts say it's unclear how judges will view whether health regulators overshot their authority in this one. Moreover, the appeal could linger beyond Bloomberg's term when it ends this year, and several of his would-be successors don't appear to have his appetite for pursuing it.

State Supreme Court Justice Milton Tingling's decision, issued Monday, says that the soda rule has so many exemptions that it's illegally arbitrary and that the Bloomberg-appointed Board of Health trod on the City Council's turf to impose it.

"This is a serious challenge to the city," particularly for saying the health board violated the separation-of-powers principle, said James Fanto, a Brooklyn Law School professor who specializes in business law and regulation.

The city filed a formal notice Tuesday of its appeal. The American Beverage Association and other opponents of the rule said they felt the judge's decision was strong and were confident in it.

The city's appeal will likely argue that the judge took too narrow a view of the 147-year-old health board's powers. Officials have noted that other groundbreaking health initiatives on Bloomberg's watch have survived court challenges: a 2006 rule requiring some restaurants to post calorie counts, for instance, was struck down, revised, challenged again and upheld.

To attack the finding that the law is arbitrarily ridden with loopholes, city lawyers could argue that any given regulation can't be expected to get at every source of a problem, said Cary Coglianese, a University of Pennsylvania Law School professor who studies regulatory processes.

The city also is stressing what it sees as the stakes: a city population in which 60 percent of adults and 40 percent of children are obese, $4 billion a year in obesity-related medical spending in the city alone, and national and local studies linking sugary drinks to weight gain.

Government actions generally enjoy some leeway in courts in light of the separation of powers. But judges tend to afford less deference to the decisions of executive agencies than to the majoritarian work of legislatures — in this scenario, the City Council, said Steven Goldberg, a Pace Law School professor and former dean.

Bloomberg said Tuesday he has no plans to try to get the council to pass the soda rule, which bars eateries as disparate as corner delis and arena concessions from selling non-diet soda, sweetened juice and some other sugary drinks in portions bigger than 16 ounces. The city believes in the health board's authority over the issue and wants a higher court to affirm it, he said.

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