Talk about a close shave: Just one day before New York City’s ban on the sale of super-sized sodas was to take effect, a judge struck it down, arguing that it was “arbitrary and capricious” and vastly exceeded the powers granted to the New York City Board of Health, which issued the edict last summer at the behest of Mayor Michael Bloomberg.
The regulation, known as the Portion Cap Rule, would have prohibited the sale of sugary beverages in sizes larger than 16 ounces. The rule exempted alcoholic drinks and drinks that are at least 50 percent milk or soy-based milk substitute, and it only applied to restaurants and other businesses that the city has the authority to regulate. Grocery and convenience stores, which are regulated by the state, would have been exempt from the rule.
A coalition of beverage makers, restaurant owners, labor unions, and small-business owners sued the Board of Health. They argued that the board had overstepped its authority, that its rule was unfair because of its uneven enforcement against different types of businesses and beverages, and that the regulation would fail to achieve its stated purpose of reducing obesity among New Yorkers.
New York State Supreme Court Justice Milton A. Tingling, Jr., agreed with them. On Monday he issued a permanent injunction barring the Portion Cap Rule from taking effect and declared the rule “invalid.”
The rule, Tingling wrote, is “fraught with arbitrary and capricious consequences.”
It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.
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