New York Mayor Michael Bloomberg’s super-sized soda ban has just been dealt another blow in court. On Tuesday, a four-judge panel of the New York Supreme Court’s Appellate Division unanimously upheld an earlier decision invalidating the New York City Board of Health’s rule forbidding consumers from purchasing more than 16 ounces of certain sugary drinks in certain establishments.
The regulation, knows as the Portion Cap Rule, was written by Bloomberg’s office and presented to the Board of Health — every member of which was appointed by the mayor — which then proceeded to enact the rule almost verbatim. A coalition of soft-drink makers, labor unions, and restaurant and small-business owners challenged the rule, and one day before it was set to take effect, state Supreme Court Justice Milton Tingling struck it down. Bloomberg appealed that decision, arguing that the rule would “save lives.”
The appellate panel, however, agreed with Tingling’s ruling, finding that the board had exceeded its authority to makes rules protecting public health.
“The Board of Health … has no inherent legislative power,” Justice Dianne Renwick wrote in the court’s opinion. “It derives its power to establish rules and regulations directly and solely from the legislature, in this case, the City Council…. Because the constitution vests legislative power in the legislature, administrative agencies may only effect policy mandated by statute and cannot exercise sweeping power to create whatever rule they deem necessary.”
“Neither the State Legislature nor the City Council has ever promulgated a statute defining a policy with respect to excessive soda consumption,” Renwick observed. In fact, she pointed out, both bodies have attempted to pass legislation targeting sugary drinks but have failed.
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