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National Restaurant Association - NRA responds to appeal of beverage ban ruling

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NRA responds to appeal of beverage ban ruling

The National Restaurant Association has filed a response to New York Mayor Michael Bloomberg's appeal of the court ruling that overturned a city regulation banning the sale of sodas and other sugar-sweetened beverages in containers larger than 16 ounces in restaurants and many other foodservice establishments.

In the response, the NRA, American Beverage Association and other respondents maintained their position that the New York City Department of Health and Mental Hygiene did not have the authority to enact the ban, and that the ban was arbitarily applied to restaurants, concession stands and other establishments while excluding convenience stores and other businesses.  

The respondents’ position has drawn the support of 23 members of the New York City Council and several groups representing small businesses, chambers of commerce and the retail, grocery and hospitality industries, all of whom filed amicus briefs in support of Tingling’s decision. The U.S. Chamber of Commerce led the amicus filing.

“In enacting the rule, the New York City Department of Health and Mental Hygiene and the Board of Health acted unlawfully by attempting to legislate in an area reserved for the New York City Council,” the U.S. Chamber of Commerce and co-filers stated in their amicus filing.

Last month, in his decision to overturn the ban, New York State Supreme Court Justice Milton Tingling called the ban “arbitrary and capricious,” as grocery and convenience stores were permitted to continue selling beverages of any size while restaurants, delis, stadiums and arenas, concession stands and food carts were not. The decision came a day before the ban was scheduled to take effect.

The NRA and ABA were lead plaintiffs in the initial challenge to the ban, arguing that the ban subjected restaurants to a standard that many competitors, including grocery and convenience stores, did not have to meet.

A hearing on the appeal is scheduled for June 11.

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