New York City’s fight to ban large sodas is running out of fizz.
An appeals court ruled Tuesday that the city’s Board of Health exceeded its legal authority and acted unconstitutionally when it tried to put a size limit on soft drinks served in city restaurants.
In a unanimous opinion, the four-judge panel of the state Supreme Court Appellate Division said the health board acted too much like a legislature when it created the limit, which would have stopped sales of non-diet soda and other sugar-laden beverages in containers bigger than 16 ounces.
New York’s effort to force residents to slim down have drawn national attention, from diet companies to late-night TV hosts. Mayor Michael Bloomberg’s administration has forced chain restaurants to post calorie counts on menus, barred artificial trans fats from restaurant fare, and challenged food manufacturers to use less salt.
Opponents decry government intervention into private decisions. They also note the city has no jurisdiction over convenience stores and supermarkets, so the soda ban creates an uneven market.
Bloomberg and city Health Commissioner Thomas Farley have sought to rein in a citywide obesity rate that rose from 18 to 24 percent of adults within a decade. The city had to start somewhere, officials said.
“We have a responsibility, as human beings, to do something, to save each other. … So while other people will wring their hands over the problem of sugary drinks, in New York City, we’re doing something about it,” Bloomberg said at a news conference after a lower court struck down the measure in March.
Today’s ruling affirmed the March decision. While the city appealed, Bloomberg has continued pushing the cause in other ways. In June, he and mayors from 15 other cities urged congressional leaders to stop allowing food stamp recipients to use the subsidies to buy soda and other sugary drinks.
The soda saga is just one chapter in the city's far-reaching intervention into its citizens’ eating habits, from hunger to obesity. The city already provides free breakfast before school to all students regardless of income, but only one in three poor children takes advantage. Officials now want to expand a federal program to bring free breakfast to the classroom, because only by feeding children themselves can they ensure they eat the way the government says is healthy.
The court’s Tuesday ruling still doesn’t kill the soda ban for good. The city’s law department promised a quick appeal. And by ruling the mayor-appointed board acted too much like a legislature, the court left open the option for the city council to adopt the policy.