Judge blocks NYC large soda ban; Bloomberg vows appeal

Laura Petrecca, USA TODAY | USATODAY

Show Caption Hide Caption Bloomberg: NYC will appeal sugary-drink decision New York City Mayor Michael Bloomberg says the city will appeal a judge's ruling that struck down a pioneering ban on big sugary drinks just hours before it was supposed to take effect. He says the judge's decision is "clearly in error." (March 11

Ban on over-16-ounce drinks was set to take effect Tuesday

Mayor Bloomberg calls it %22portion control%22

A New York State judge says loopholes defeated the purpose

Talk about a sugar high.

New York City's soft drink sellers celebrated a sweet victory Monday when Mayor Michael Bloomberg's controversial ban on large-size sugary beverages was overturned by a New York state judge.

"We're excited. We're happy," said Russell Levinson, general manager of Movieworld in Queens. He said he is relieved that, at least for now, the theater doesn't have to ditch the four drink sizes that would have been banned under the new regulations.

The size limit had been set to take effect Tuesday.

On Monday afternoon, New York Supreme Court Judge Milton Tingling ruled that the city health board didn't have the authority to limit or ban a legal item under the guise of "controlling a chronic disease."

"The Board of Health may supervise and regulate the food supply of the city when it affects public health," and can do so when the city "is facing imminent danger due to disease," but that was not proven in this case, Tingling said in his written decision.

The limit put a 16-ounce cap on sweetened bottled drinks and fountain beverages sold at city restaurants, delis, movie theaters, sports venues and street carts.

The size limit applied to beverages with more than 25 calories per 8 ounces. It didn't include 100% juice drinks or beverages with more than 50% milk.

"We are elated with today's decision," the National Association of Theatre Owners said in a written statement. "This issue was never about obesity, nor about soda. This was all about power. The court rejected the mayor's attempt to unilaterally tell New Yorkers what to drink."

At a news conference Monday evening, Bloomberg said he disagreed with the court decision and that the city would appeal. With a rising number of overweight and obese people, he said, "it is reasonable and responsible to draw a line."

Bloomberg has been going full force with his efforts to show the detriments of sweetened drinks. On Monday, he released data that showed a correlation between sugary-drink consumption and obesity.

And on Sunday, Bloomberg defended the regulation. "We're not banning anything," he said on CBS' Face the Nation. "It's called portion control."

"All we're doing in New York is reminding you that it's not in your interest to have too many empty calories," he said. "If you want to have 32 ounces, just buy two 16-ounce cups."

The group that filed suit against the rule applauded the decision. "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," said Chris Gindlesperger, spokesman for the American Beverage Association, one of the plaintiffs. "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 suit against the city health board and health department was brought by the New York Statewide Coalition of Hispanic Chambers of Commerce, the New York Korean-American Grocers Association, the Soft Drink and Brewery Workers Union Local 812, the International Brotherhood of Teamsters, the National Restaurant Association, the National Association of Theatre Owners of New York Stateand the American Beverage Association.

Soft-drink sellers had taken different approaches to the coming ban. Some bought smaller cups. Some planned to ask patrons to sweeten their own beverages.

Movieworld 's Levinson had planned to wait out the 90-day grace period before making any changes.

He said the fact that the ban wouldn't affect beverages sold in grocery or convenience stores made it "terribly unfair" to the businesses that were covered.

Levinson also worried about longer-term ramifications. The legislation had opened up "the possibility of (Bloomberg) or someone like him — or the health department — creating similar laws on candy or popcorn," he said. "It's opening up a door that can lead to the government really telling you what you can and can't drink and eat."

By Monday, Brother Jimmy's BBQ, a restaurant chain with five Big Apple outposts, had already bought 1,000 new 16-ounce cups to replace its 24-ounce cups. It already recycled the old cups, so it's stuck with the smaller size.

Bloomberg said he hopes soft-drink sellers in general will follow the ban voluntarily. "I don't think it'll hurt your bottom line," the mayor said. Even if it did, he said, saving lives is more important than profits: "We all have an obligation to do what we can to help each other."