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.
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Publius Gaius Arbiter
[Spelling correction]
Mayor Mike's adamantine obsession with gargantuan sodas exceeds concern over Federal budget cuts ("sequesters"). Bravo to portly Justice Tingling! Now, what legal authority did the Little Flower Fiorello LaGuardia have to ban the sale and possession of baby artichokes in 1935?
--------------Publius Gaius Arbiter
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Publius Gaius Arbiter
Mayor Mike's adamantine obsession with gargantuan sodas exceeds concern over Federal budget cuts ("sequesters"). Bravo to portly Justice Tingling! Now, what legal authority did the Little Flower Fiorello LaGuardia have to ban the sale and possession or baby artichokes in 1935?
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Tom
That "sigh of relief" is actually the sound of obese people catching their breath after getting up from their arm chairs.
If we can't keep people from gluttony, we should institute risk based health care premiums. I'm not particularly keen on paying for a teen's diabetes treatment when the disease is completely self inflicted.
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Michael
Hopefully the appeals process moves very slowly, and Mayor McCheese's illegal third term expires PRIOR to his bribing and paying off either the Appellate Term/Division or the City Council, in his attempt to add yet another tax on the citizenry or add more illegallly obtained treasure to the City's coffers. Until the city criminalizes 'large sodas' there is no way logic, the law or un-common sense would ever agree that the government's function now includes 'portion control'. While his do-nothing NYPD continues to allow illegal handguns into the city and the hands of criminals (some cops are actually selling the guns); while his transportation, sanitation and other city services crumble into public servant fifedoms, Mayor McCheese worries not, as he will fly to Bermuda when a storm is coming; he will go harass LEGAL GUN OWNERS IN OTHER STATES, before he requests Ms. Kelly to explain why the NYPD can't stop the gun violence. Her Honor needs to resign immediately, and do us all a favor by writing a single check to balance the city budget. Then he can continue to steal talent from the City (by hiring the VERY FEW intelligent deputy mayors for his private company) and continue to prove that City Government cares only for the rich and elite, to the detriment of the middle class, working class and the poor. I hope to celebrate by tossing a few thousand three litre bottle onto the lawn @ Gracie Mansion...oh wait, Her Worshipfulness doesn't even live there..........
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