A judge struck down New York City's pioneering ban on big, sugary drinks Monday just hours before it was supposed to take effect, handing a defeat to health-minded Mayor Michael Bloomberg and creating confusion for restaurants that had already ordered smaller cups and changed their menus.
State Supreme Court Justice Milton Tingling said the 16-ounce (479 millilitre) limit on sodas and other sweet drinks is too arbitrary because it applies to only some sugary beverages and some places that sell them.
"The loopholes in this rule effectively defeat the stated purpose of this rule," Tingling wrote in a victory for the beverage industry, restaurants and other business groups that called the rule unfair and wrong-headed.
Further, the Bloomberg-appointed Board of Health went beyond its authority in approving the size limit, the judge said, agreeing with the critics that the matter should have been up to the elected City Council.
The city vowed to appeal the ruling, issued by New York state's trial level court. But for now, it means the ax won't fall Tuesday on super-sized sodas, sweetened teas and other high-sugar beverages in restaurants, movie theaters, corner delis and sports arenas.
"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 and other opponents said, adding that the organization is open to other "solutions that will have a meaningful and lasting impact."
The city expressed confidence that it would win on appeal.
"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," said Michael A. Cardozo, the city's corporation counsel.
The first of its kind in the country, the restriction has sparked reaction from city streets to late-night talk shows, celebrated by some as a bold attempt to improve people's health and derided by others as another "nanny state" law from Bloomberg during his 11 years in office.
On his watch, the city has compelled chain restaurants to post calorie counts, barred artificial trans fats in restaurant food and prodded food manufacturers to use less salt. The city has successfully defended some of those initiatives in court.
Because of the limits of city authority and exemptions made for other reasons, the ban on supersized beverages doesn't cover alcoholic drinks or many lattes and other milk-based concoctions, and it doesn't apply at supermarkets or many convenience stores — including 7-Eleven, home of the Big Gulp.
The rule, if upheld, would create an "administrative leviathan," warned Tingling, who was elected to the state Supreme Court bench in 2001 as a Democrat.
City worried about obesity rate
In defending the rule, city officials point to the city's rising obesity rate — about 24 percent of adults, up from 18 percent in 2002 — and to studies tying sugary drinks to weight gain. Care for obesity-related illnesses costs government health programs about $2.8 billion a year in New York City alone, according to city Health Commissioner Dr. Thomas Farley.
"Without a portion cap on sugary drinks, it would be harder to tackle an obesity epidemic that kills more New Yorkers than anything other than smoking and causes misery for many thousands more who suffer from heart disease, diabetes and other debilitating illnesses," Farley said after the ruling.
Critics said the measure is too limited to have a meaningful effect on New Yorkers' waistlines. And they said it would take a bite out of business for the establishments that had to comply, while other places would still be free to sell sugary drinks in 2-liter bottles and super-size cups.
Beverage makers had expected to spend about $600,000 changing bottles and labels, movie theater owners feared losing soda sales that account for 10 percent of their profits, and delis and restaurants would have had to change inventory, reprint menus and make other adjustments, according to court papers.
The city had said that while restaurant inspectors would start enforcing the soda size rule in March, they wouldn't seek fines — $200 for a violation — until June.