In both instances, courts ruled that the health boards' actions intruded on powers reserved for other administrative bodies.
In the issue before him yesterday, Tingling traced the powers invested in city government under its various charters, beginning with the Dongan Charter of 1686 and concluding with charter revisions in 2012.
He said the charters have all afforded the city's Board of Health "very broad" powers over public health and over what food the public eats. The charters allowed for the destruction of any foods determined by the Board of Health to be unwholesome.
"However, one thing not seen in any of the Board of Health's powers is the authority to limit or ban a legal item under the guise of 'controlling chronic disease,' as the Board attempts to do herein [with the beverage ban]," Tingling wrote. "The Board of Health may supervise and regulate the food supply of the City when it affects public health, but the Charter's history clearly illustrates when such steps may be taken, i.e., when the City is facing imminent danger due to disease. That has not been demonstrated herein."
The restriction on the consumption of soda "is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing interests," Tingling wrote, quoting Boreali.
The legality of the health code is further crippled by the "arbitrary and capricious consequences" that enforcing it would create, the judge wrote.
"The loopholes in this rule effectively defeat the stated purpose of this rule," he said.
The Big Gulp sold by 7-11, for instance, would be exempt under the code because regulation of convenience stores, and that of other establishments, are set under a memorandum of understanding with the state that would bypass the city's code.
In addition, Tingling said that by not extending the portion limit to refills, where offered, could defeat the purpose of the rule entirely at some establishments.
"The simple reading of the Rule leads to the…acknowledged uneven enforcement within a particular City block, much less the City as a whole," Tingling said.