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New York Appeals Court Asked to Reinstate NYC Soda Ban

Former New York City Mayor Michael Bloomberg has returned to his life as a normal, everyday billionaire, but his policy dictates are lingering on and may do so for some time.

One of the most infamous was Bloomberg’s ban on soda or other “sugary” drinks in containers larger than 16 ounces. The ban was struck down, but questions about its legal soundness were back up Wednesday for 30 minutes of oral arguments before a seven-member panel of the New York Court of Appeals.

The New York City Department of Health and Mental Hygiene and the New York City Board of Health, both still mostly populated with Bloomberg appointees, brought the appeal. They want the “portion cap rule” reinstated in the name of fighting obesity.

However, the New York Statewide Coalition of Hispanic Chambers of Commerce, which got the ban struck down because it violated the separation-of-powers doctrine, continues to represent all of those who “want more” soda.

In May 2012, Bloomberg opted to propose the soda-size ban as a rule under the city’s Health Code, with his proposal going through the Board of Health, composed of people who serve at the mayor’s pleasure, and thereby going around the elected New York City Council.

Fourteen members of the New York City Council signed a formal objection that was sent to Bloomberg, but he continued to skirt the legislative branch, and the measure went through the Board of Health in September 2012 without any change or dissent. At that point, the ban had the force of law.

Bloomberg’s soda-size ban applied to non-diet soft drinks, sweetened coffee and tea, energy and sports drinks, hot chocolate and sweetened juices. Larger than 16-ounce sizes were permitted for alcoholic beverages, milkshakes, fruit smoothies, mixed coffee drinks, mochas and lattes, and 100-percent fruit juices.

Grocery stores, convenience stores, corner markets, gas stations, and similar businesses were exempted from enforcing the ban. However, it did apply to restaurants, delis, fast-food outlets, movie theaters, stadiums and street carts.

The Hispanic Chambers of Commerce heads a broad coalition of businesses that wanted no part of Bloomberg’s soda ban to fight obesity. The coalition includes both labor unions and business owners.

Richard Dearing, the Board of Health’s corporate counsel, tried to persuade the New York Appeals Court on Wednesday to reverse the lower court’s finding that the soda ban violated four factors used to determine when administrative actions violated the separation of powers. He told the court there is a “rich, vast and growing body of literature ” in support of obesity as a major public health concern.

Richard P. Bress, the Washington, D.C., attorney representing the coalition, argued against reinstating the ban. Opponents were successful at the lower-court level because those judges agreed that the Board of Health made their decision based on non-health policy considerations.

After hearing oral arguments, the New York Court of Appeals took the soda ban appeal under advisement. The court will likely render a decision later this year.

Bloomberg’s 11-year tenure as New York City’s mayor ended last Dec. 31.

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