A state appeals court upheld a lower-court ruling Tuesday stating that New York City could not ban the sale of large sodas and sugary beverages at restaurants and other venues throughout the five boroughs.

The First Department of the State Supreme Court’s Appellate Division said the city’s Board of Health had overstepped its authority last September when it agreed to restrict restaurants, sports venues, movie theaters, street carts and delis from selling soda and other sugary beverages in cups or containers larger than 16 ounces.

Retail food and convenience stores, which fall under the jurisdiction of the state of New York, would not have been impacted by the ban, thereby creating an unfair marketplace, opponents maintained.

The initiative had been championed by Mayor Michael Bloomberg, who argued that large, sugary beverages were contributing to the city’s obesity and health-related problems. “Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12, more than 2,000 New Yorkers have died from the effects of diabetes,” he said in a statement.

Bloomberg said the city would appeal the latest ruling, calling it a “temporary setback.”

The National Restaurant Association together with other groups and individuals had challenged the city’s ban in a lawsuit filed last October in the New York State Supreme Court in Manhattan. In March, one day before the ban was scheduled to take effect, that court ruled in favor of the plaintiffs and against the city, calling the regulations “arbitrary and capricious.”

In this latest ruling, the New York Supreme Court said initiatives like the soda ban were more appropriately addressed by the state legislature or New York City Council. “The [city’s] Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the [ban] to curtail the consumption of soda drinks,” Appellate Justice Dianne Renwick wrote. “It therefore violated the state principle of separation of powers.”

The NRA called Tuesday’s ruling “a great victory” for thousands of restaurant operators.

“The National Restaurant Association has been a lead plaintiff in the lawsuit against the New York City proposed beverage ban, along with the American Beverage Association and a number of other organizations,” said Dawn Sweeney, president and CEO of the NRA. “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.

Rick Sampson, president and chief executive of the New York State Restaurant Association, said the NYSRA had not participated in the lawsuit, but he was glad to see the ban overturned. “The mayor means well — I don’t doubt it,” Sampson said. “But this isn’t the way to go about it. When you start to limit the size of a drink, you have to ask, ‘What’s next? Fifteen fries per serving?’

“Let the consumer decide. We don’t need the government to dictate portion limits.”

Contact Paul Frumkin at paul.frumkin@penton.com.
Follow him on Twitter: @NRNPaul