Judge Blocks Ban of Big Sodas in New York City

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For now, larger-sized soft drinks are safe. But for how long?

Calling the ban on sugared sodas larger than 16 oz. “arbitrary and capricious,” New York Supreme Court Judge Milton Tingling invalidated the ban, preventing the city from implementing the new rule hours before it was intended to go into place.

Restaurants in the city had already spent thousands of dollars to accommodate the ruling, replacing cups larger than 16 oz. with smaller ones and changing their menus to avoid running afoul of the ban on large sugared-drinks.

The judge noted inequalities in the rule, such as the fact that only some establishments that are routinely monitored by the city, like street vendors, movie theaters, stadiums and restaurants would have to enforce the rule, but convenience stores such as 7-Eleven, which are regulated by the state, and not the city, would not. There was also confusion over non-soda calorie drinks like frappuccinos, since anything with at least 50% milk or milk substitute were not included with the ban. Judge Tingling wrote:

The loopholes in this Rule effectively defeat the stated purpose of the Rule. 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.

(MORE: Goodbye, Big Soda: New York Becomes First City to Ban Large-Sized Soft Drinks)

Immediately after Tingling’s ruling, the NYC Mayor’s Office announced that it would appeal the ban. “We plan to appeal the decision as soon as possible, and we are confident the Board of Health’s decision will ultimately be upheld. This measure is part of the City’s multi-pronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year, and we believe the Board of Health has the legal authority – and responsibility – to tackle its leading causes,” said Michael A. Cardozo of NYC Law Department Corporation Counsel in a released statement.

[tweet https://twitter.com/NYCMayorsOffice/status/311200427066683393] [tweet https://twitter.com/NYCMayorsOffice/status/311201654433280000]

In a press conference, Mayor Bloomberg spoke about the state Supreme Court’s decision, and noted previous, equally contentious successes by the city to improve New Yorkers health. He also reminded New Yorkers of the reason for the pioneering ban — to help residents address the epidemic of obesity. He said:

“We believe it’s reasonable to draw a line – and it’s responsible to draw a line right now. With so many people contracting diabetes and heart disease, with so many children who are overweight and obese, with so many poor neighborhoods suffering the worst of this epidemic, we believe it is reasonable and responsible to draw a line – and that is what the Board of Health has done. As a matter of fact, it would be irresponsible not to try to do everything we can to save lives…Being the first to do something is never easy. When we began this process, we knew we would face lawsuits. Anytime you adopt a groundbreaking policy, special interests will sue. That’s America.”

Despite such good intentions, the ban polarized even nutritionists, not to mention those in the beverage industry and citizens who thought Bloomberg was overstepping, turning the city into a “nanny state.” Marion Nestle, a nutrition professor at New York University and author of Why Calories Count, supported the ban, calling it a “nudge” in the right direction for turning around the health of Americans. She wrote in her blog, Food Politics:

If we want Americans to be healthy, we are going to have to take actions like this – and many more – and do so soon. It’s long past time to tax sugar soda, crack down further on what gets sold in our schools, tackle abusive marketing practices, demand a redesign of labels – and extend the soda cap, no matter how controversial it may seem. This must be the beginning, not the end, of efforts toward a healthier America.

(MORE: The New York City Soda Ban, and a Brief History of Bloomberg’s Nudges)

But other health experts were not so keen on the new rule. “Honestly, I was not disappointed when I heard the judge invalidated the ban. I have always believed that we shouldn’t demonize one food or beverage. Overall there are many facets that lead to obesity,”says Keri Gans, a registered dietitian in New York City and author of The Small Change Diet. “As far as ways to get New Yorkers to be healthier; I would encourage people to walk to work, bring their lunch from home, and drink more water. Promote more positive messaging versus negative ones.”

Other nutrition experts applauded the intention behind the ban, but noted that it wasn’t developed fully enough, since the same establishments that could no longer sell sugared beverages larger than 16 oz. could still sell diet drinks, making enforcement a challenge. “We really don’t know at this time how effective such a ban would even be as there is simply not enough evidence regarding whether bans and taxes work. We do know that cutting out sugary beverages is one of the single easiest ways to cut calories. Unlike food, drinks do little to keep us full so it’s easy to guzzle hundreds of empty calories each day without even realizing it. However, the judge did not invalidate the most important thing, namely educating people about the importance of reducing their consumption of sugary drinks,” says Karen Ansel, MS, RD a spokesperson for the Academy of Nutrition and Dietetics.”For those in doubt, water, 1% or fat free milk or unsweetened coffee or tea are all choices people can feel good about.”

Beverage makers also lauded the judge’s ruling. “The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban.  With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City,” said Chris Gindlesperger, a spokesman for the American Beverage Association in a statement.

So while there’s no rush to hoard larger drinks for now, the battle over the sugared beverage isn’t over yet. Given Bloomberg’s track record in instituting stricter health requirements — New York City became the first to require restaurants to remove trans fats and to ban smoking from outdoor public places as precedent — sugared drinks probably aren’t safe yet.