A judge yesterday called a halt to New York City Mayor Michael Bloomberg's controversial plan to ban the sale of sugary beverages in containers larger than 16 ounces.
Manhattan Supreme Court Justice Milton Tingling (See Profile) agreed in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, 653584/12, with a coalition of business groups and unions who argued that the city's Board of Health lacked the power to adopt the so-called "portion cap" in amendments to the city health code adopted last year.
The rule was to have gone into effect today, although the city declared a three-month grace period before it would start fining violators.
The Bloomberg administration immediately said it would appeal.
In a press conference yesterday, Bloomberg said the ban would be "voluntary until we win on appeal," and suggested that city eateries voluntarily stop selling drinks larger than 16 oz. "I don't think it'll hurt your bottom line," he said. "We're talking about lives versus profits."
Tingling in his decision noted that Health Code §81.53 was adopted verbatim by the Board of Health based on language proposed by the mayor's office to combat obesity, particularly among young people.
Opponents argued that while obesity is a worrisome public health problem, its links to oversized and cheap sodas typically sold by fast-food restaurants and convenience stores is not as clear-cut as Bloomberg portrays it.
Tingling acknowledged that obesity is a "serious issue" but he said his duty was to judge the legality of the measure.
He found guiding precedent in both Boreali v. Axelrod, 71 NY2d 1 (1987), and American Kennel Club v. City of New York, 13587/89 (1989), to support the petitioners' argument that the Board of Health, whose members are appointed by the mayor, had strayed into territory belonging to the elected City Council.
In Boreali, restaurateurs challenged the state Public Health Council's rules prohibiting smoking in most public places. In American Kennel Club, the city's Department of Health had tried to ban pit bulls.