Mayor Bloomberg: Decision of the state appeals court to reject super-size soda ban is 'a temporary setback'

The court rejected the proposed ban on the grounds that the city's health board - which voted to implement the ban - did not have the authority to do so. The decision upheld a March ruling by New York’s State Supreme Court that also blocked the proposed ban.

The court also argued that the ban was arbitrary in that drinks banned in a restaurant can be served in a grocery store next door.

“It does not apply to all food service establishments. Nor does it apply to all sugary beverages. The Board of Health’s explanations for these exemptions do not convince us that the limitations are based solely on health-related concerns.”​

It added: “In promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority. Accordingly, we declare the regulation to be invalid, as violative of the principle of separation of powers.”​

However, the City's health board said it would appeal.

Counsel Michael A. Cardozo said: “We firmly disagree with the court’s reasoning and will seek to appeal to the Court of Appeals as quickly as possible. There is broad precedent for the Board of Health to adopt significant measures to protect New Yorkers’ public health.”​

Marion Nestle: Even if the city loses the final appeal, the 16-ounce soda cap is the writing on the wall for soda companies​

Commenting on the case​, Marion Nestle, professor of nutrition, food studies, and public health at New York University,  said: “Even if the city loses the final appeal, the 16-ounce soda cap is the writing on the wall for soda companies. Sales of full-sugar sodas have been falling for years and getting worse for both Coca-Cola and Pepsi.”​

CSPI (Center for Science in the PUblic Interest) Executive Director Michael F. Jacobson, who has been a vocal supporter of Bloomberg's proposal, added: "Out-of-control serving sizes for soda and other sugar drinks are fueling an epidemic of obesity and diabetes. Ratcheting down those sizes should be part of any serious, comprehensive effort to bring these diseases under control."​

The ban proposed to prohibit sales of sugary beverages in containers larger than 16oz by any outlet that receives letter grades for food service, including movie theaters, fast food chains, mobile food carts and delis. It will not apply to grocery stores.

It would include beverages "sweetened with sugar or another caloric sweetener that contain more than 25 calories per 8 fluid ounces and less than 51% milk or milk substitute by volume as an ingredient​”, but exclude most dairy-based drinks, diet sodas, alcoholic drinks and 100% juices.

Click here​ to read the court’s decision.