NYC ban on large sugary drinks fizzles again

Gary Strauss and Rebecca Castagna | USA TODAY

Large-size soft drinks are a sip closer to retaining their fizz in the Big Apple.

New York City Mayor Michael Bloomberg's efforts to ban large, non-diet sugary drinks from restaurants, fast-food spots, sports arenas, movie theaters and other outlets was rejected by a New York appellate court Tuesday, which said the move was illegal.

Bloomberg, citing health issues, had proposed banning the sales of 16-ounce sugary beverages to counter obesity in the nation's largest city. Soft-drink marketers and businesses challenged the law, saying it violated consumers' freedom.

In March, New York Supreme Court Judge Milton Tingling ruled that New York City could not enforce the ban. The ruling came a day before the ban was set to be enforced. Tingling called it arbitrary, capricious and beyond the city's regulatory powers.

On Tuesday, the First Division of the state Supreme Court's Appellate Division upheld Tingling's ruling, saying the law was unconstitutional.

"Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority," appellate judges wrote in a unanimous decision.

Still, while two courts may have iced Bloomberg's ban, his administration says it will appeal.

"Today's appellate division decision is a temporary setback, and we plan to appeal as we continue the fight against the obesity epidemic,'' said Bloomberg, whose efforts to fight obesity and improve health have included an end to smoking in most public places, a ban on trans fats and requiring big restaurant chains to list calorie counts of their offerings.

The American Beverage Association, which fought the drink ban, applauded Tuesday's ruling.

"We are pleased that the lower court's decision was upheld,'' the ABA said. "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."

Large-sized drinks sold at grocery and convenience stores -- including 7-11's iconic 64-ounce Big Gulp -- were exempt from the ban, as were milk-based and alcoholic beverages.

New Yorkers were decidedly vocal about the decision.

Chelsea resident Antony Currie says while people would eventually get used to the ban, he was pleased at Tuesday's ruling. "It's not really the government's position to be dictating what size people drink," he says.

Brooklyn's Tom Holland concurred. "If you're going to drink 60 ounces of soda, that's your prerogative,'' says Holland, 23.

Manhattan's Betsy Skinner, however, saw a potential upside.

"I was kind of wishing it would go through so movie theaters would sell smaller drinks," she says, laughing. "I just want a smaller option!"

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