In another major victory for New York restaurateurs, the New York Supreme Court, Appellate Division, upheld the state Supreme Court’s ruling that struck down the city’s ban on the sale of sugar-sweetened beverages over 16 ounces by restaurants.
The court’s four-judge panel was unanimous in its decision that the New York Board of Health and Mental Hygiene “violated the state principle of separation of powers.”
“We think it is clear that [the City Charter] does not empower the Board of Health to promulgate rules regulating the conduct of the people of the City of New York with respect to all matters having some relation to the public health,” the judges stated.
The decision is a significant blow against the city’s efforts to prohibit restaurant and foodservice establishments from selling larger-sized sugary drinks. In a statement, New York Mayor Michael Bloomberg, who ordered the ban in an attempt to address childhood obesity, said the city would appeal the latest ruling.
“We are very gratified by today’s ruling and believe it will send a strong message to other jurisdictions that may have been considering similar bans,” said NRA President and CEO Dawn Sweeney.
After the New York City Department of Health and Mental Hygiene enacted the ban late last year, the NRA, American Beverage Association and others filed a legal challenge, arguing that the ban violated New York’s separation of powers doctrine. They also argued the decision was arbitrary, as it subjected restaurateurs to a standard that their competitors, including grocery and convenience stores, didn't have to meet.
In March, a day before the ban was to take effect, New York State Supreme Court Justice Milton Tingling ruled that the ban was arbitrary because it applied to “some, but not all food establishments in the city.” In his decision, Tingling also noted that the city’s ban excluded other beverages that had “significantly higher concentrations of sugar sweeteners and/or calories.” The judge also noted that the ban contained numerous loopholes, including no limitations on beverage refills, which would defeat the rule’s purpose.
Had the ban been enacted, restaurants, delis, stadiums and arenas, concession stands and food carts would have been prohibited from selling sugar-sweetened beverages like soda, sweetened iced tea, lemonade, as well as some smoothies and coffee drinks larger than 16 ounces.
In addition to the court challenges, the NRA, New York State Restaurant Association and ABA were key players in New Yorkers for Beverage Choices, a coalition of more than 3,700 members that aimed to educate the public about the ban. The coalition’s efforts included a public awareness campaign that targeted more than a half a million voters with radio ads, movie trailers and direct mail to educate consumers about the ban. It has attracted the support of more than 564,000 individuals, businesses and organizations.