Back in March, Manhattan Supreme Court Justice Milton Tingling pumped the brakes on Mayor Michael Bloomberg’s infamous attempt to ban the sale of what he and his fellow nanny-staters deemed to be too-large sugary beverages, ruling that the pending regulations were “fraught with arbitrary and capricious consequences” and that they “not only violate the separation of powers doctrine, it would eviscerate it. … Such an evisceration has the potential to be more troubling than sugar sweetened beverages.” Ouch.

The ban’s defenders, of course, have yet to give up hope that Bloomberg’s oh-so-noble mission will eventually be cleared for takeoff; the city is appealing the ruling, and at the Appellate Division on Tuesday, a city lawyer argued that the higher court should reinstate the ban because of the law’s ostensible virtues in deterring obesity.

The four members of the appeals panel were apparently unconvinced. Via the NY Post:

The panel was befuddled by the distinctions. “How about pomegranate juice and blueberry juice?” Judge Rosalyn Richter asked. “What about sugar-infused energy drinks?” she wondered. Richard Bress, the attorney arguing for the soda ban opponents took up the judges’ concerns about the logic of a ban that allows regular milk and soy substitutes but not rice or almond milk. “The lines they’ve drawn every which way are really not rationally based,” Bress said.

And here are some more thoughts from two of the panel judges:

Justice David Friedman said the city appeared to be asking for unprecedented authority to regulate all sorts of portion sizes, including “the number of doughnuts a person could eat, the number of scoops of ice cream” and number of servings of fried chicken. Several times, Justice Dianne Renwick questioned whether the 16-ounce size limit was scientifically arbitrary, given that it is based on liquid volume rather than a measure of how much sugar is actually in a beverage. The limit, she noted, meant that some drinks with high amounts of sugar would be allowed, while others with less sweetener would be banned.

Hmm. After the court session, City Health Commissioner Thomas Farley reportedly insisted that he “remained confident the regulation will ultimately be upheld”; uhm, if you say so, dude. The court will likely issue a decision before their summer recess, and if they fail to find sympathy with the city’s central planners, the city will have one last chance to wring a favorable ruling out of the Court of Appeals, the state’s highest court.

But never fear, New Yorkers: In case you missed it, even if Bloomberg won’t technically be allowed to prevent the city’s inhabitants from imbibing sugary beverages out of too-big containers, the city is still spending cash on furthering their public-health awarness campaign:

New York City Mayor Michael Bloomberg’s campaign to cut consumption of sugary drinks has expanded to warning residents that some sweet teas, sports and energy drinks and fruit-flavored beverages have more sugar than soda. The city Health Department on Monday launched a $1.4 million TV and bus ad campaign, MyFoxNY.com reported. The spots say such drinks might sound healthy but are packed with added sugar that can lead to obesity and other health problems. “Sports drinks, energy drinks and fruit-flavored drinks sometimes sound like they’re good for us, but they are contributing to the obesity epidemic just as much as sugary soft-drinks,” Health Commissioner Thomas Farley said in a statement.

This has been a public service announcement.