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Judge Blocks New York City’s Limits on Big Sugary Drinks Judge Blocks New York City’s Limits on Big Sugary Drinks
(about 1 hour later)
A judge invalidated New York City’s limits on large sugary drinks on Monday, one day before they were to go into effect, dealing a significant blow to one of Mayor Michael R. Bloomberg’s signature public health initiatives and a marquee project of his third term. A judge struck down New York City’s limits on large sugary drinks on Monday, one day before they were to take effect, in a significant blow to one of the most ambitious and divisive initiatives of Mayor Michael R. Bloomberg’s tenure.
The decision by Justice Milton A. Tingling Jr. of State Supreme Court in Manhattan blocks the city from putting the rules into effect or enforcing them. In an unusually critical opinion, Justice Milton A. Tingling Jr. of State Supreme Court in Manhattan called the limits “arbitrary and capricious,” echoing the complaints of New York business owners and consumers who had deemed the rules unworkable and unenforceable, with confusing loopholes and voluminous exemptions.
Justice Tingling said the rule banning the drinks was “arbitrary and capricious.” The decision comes at a sensitive time for Mr. Bloomberg, who is determined to burnish his legacy as he enters the final months of his career in City Hall, and his administration seemed caught off guard by the decision. Before the judge ruled on Monday, Mr. Bloomberg had called for the soda limits to be adopted by cities around the globe; he now faces the possibility that one of his most cherished endeavors will not come to fruition before he leaves office, if ever.
In his opinion, Justice Tingling specifically cited a perceived inequity in the soda rules, which applies to only certain sugared drinks — beverages with a high milk content, for instance, would be exempt — and would apply only to some food establishments, like restaurants, but not others, like convenience stores. The mayor’s plan, which he pitched as a novel effort to combat obesity, aroused worldwide curiosity and debate — and the ire of the American soft-drink industry, which undertook a multimillion-dollar campaign to block it, flying banners from airplanes over Coney Island, plastering subway stations with advertisements and filing the lawsuit that led to the ruling.
“It applies to some but not all food establishments in the city,” Justice Tingling wrote. “It excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories.” Mr. Bloomberg said he would immediately appeal, and at a quickly arranged news conference, he fiercely defended the rationale for the rules, which would have limited the size of sugary drinks to 16 ounces at restaurants, theaters and food carts.
The judge also wrote that the fact that consumers can receive refills of sodas, as long as the cup size is not larger than 16 ounces, would “defeat and/or serve to gut the purpose the rule.” The judge also appeared to be skeptical of the purview of the city’s Board of Health, which the Bloomberg administration had maintained has broad powers to seek to better the public’s health. That interpretation, the judge wrote, “would leave its authority to define, create, mandate and enforce limited only by its own imagination,” and “create an administrative Leviathan.” “I’ve got to defend my children, and yours, and do what’s right to save lives,” the mayor said. “Obesity kills. There’s no question it kills.” He added, “We believe that the judge’s decision was clearly in error, and we believe we will win on appeal.”
After the judge imposed a stop to the ban, the Bloomberg administration quickly said it would challenge the decision. The plan, unveiled last May, was hailed by many public health officials as a breakthrough in the effort to combat the effects of high-calorie, sugary drinks on the public’s health. Similar proposals have been put forward in Los Angeles and Cambridge, Mass., even as the idea of a “war on soda” has become regular fare for late-night comedians.
“We plan to appeal the decision as soon as possible, and we are confident the Board of Health’s decision will ultimately be upheld,” Michael A. Cardozo, the Bloomberg administration’s chief counsel, said in a statement. “We believe the Board of Health has the legal authority — and responsibility — to tackle” the causes of obesity. Coffee shops and restaurants around the city had already begun editing menus, retraining employees, and warning customers of the upcoming changes in the sorts of drinks they could and could not purchase. Dunkin’ Donuts, for instance, told its employees they could no longer add sugar to large coffees.
The ruling stunned the Bloomberg administration, which was deep into preparations to begin enforcing the ban and had even boasted on Monday that it should be applied nationally as a remedy to rising obesity rates. Mr. Bloomberg had scheduled a news conference for Tuesday morning to celebrate the inauguration of the new rule, when he would stand with lawmakers who supported the initiative, according to a person told of the plans. The measure was already broadly unpopular: In a New York Times poll conducted last August, 60 percent of New York City residents said it was a bad idea for the Bloomberg administration to pass the limits, although Bronx and Queens residents were more likely than Manhattan residents to oppose it.
At a news conference on Monday, hours before the ruling, Mr. Bloomberg predicted little resistance to the measure. “I think you’re not going to see a lot of push back here at all,” he said. “I think everybody across this country should do it.” In his ruling on Monday, Justice Tingling concurred with much of the beverage industry’s legal arguments. He said the Board of Health, which is appointed by the mayor, had overreached in approving the plan, and wrote that the City Council was the only legislative body with the power to approve such a far-reaching initiative.
The American Beverage Association, the soft drink industry trade group that led a campaign against the plan, said the court decision “provides a sigh of relief.” The administration, Justice Tingling wrote, had interpreted the board’s powers broadly enough to “create an administrative Leviathan,” capable of enacting any rules and “limited only by its own imagination.”
The industry stood to lose tens of millions of dollars if Mr. Bloomberg’s proposal had been put into place, and industry executives were concerned about a copycat effect, in which states and cities around the country would follow New York’s lead in cracking down on sweetened drinks. Taxes on soda are currently being considered in Hawaii and Nebraska. The judge also criticized the rules themselves, noting they would apply only to certain sugared drinks — dairy-based beverages like milkshakes, for instance, would be exempt — and be only enforced in certain establishments, like restaurants and delis, but not others, like convenience stores and bodegas. The rules would create “uneven enforcement, even within a particular city block, much less the city as a whole,” the judge wrote.
During hearings in Justice Tingling’s courtroom over the past few months, at which he considered a challenge to the ban, lawyers for the beverage industry, which was represented by the high-powered corporate firm Latham & Watkins, presented their argument in high dudgeon, calling the rules “ludicrous.” At one point, James E. Brandt, the lead lawyer for the industry, described the regulation as having been created by “scientists in the room, working with the mayor, creating a regulation here that is going to cost people a ton of money.” Lawyers for the Bloomberg administration said on Monday that it remained confident that the Board of Health, which has been the conduit through which the mayor has pushed through his boldest public health initiatives, including limits on trans fats in restaurants, had “the legal authority and responsibility” to address obesity in the city.
In contrast, lawyers for the Bloomberg administration offered a subdued, highly technical rebuttal that only occasionally addressed the broader rationale for the rule, which they said would fight obesity in the city. One city lawyer was asked by the court reporter to repeat his points, because she could not hear him. Mr. Bloomberg has some experience in prevailing over legal challenges to his public health initiatives, including his requirement that fast food menus include calorie counts.
A trade group for the city’s movie theaters was quick to hail the decision on Monday. “Serious problems like obesity cannot be addressed by the imposition of an arbitrary and porous Mayoral fiat,” wrote Matthew Greller, a spokesman for the National Association of Theater Owners of New York State. “This issue was never about obesity, nor about soda. This was all about power.” But on Monday there was no immediate consensus on the likelihood of a reversal of Justice Tingling’s ruling. Ross Sandler, a professor at New York Law School, said that city laws deemed “arbitrary and capricious” had frequently been reinstated upon appeal. But Ronald John Warfield, a civil and criminal lawyer who sued the Bloomberg administration to stop its ban on smoking in bars and restaurants, said he expected the appeal to fail.
The city’s attempt to limit soda sizes has been the subject of worldwide curiosity and debate — not to mention mockery — since Mr. Bloomberg unveiled the proposal last May. There were the usual late night television punch lines, but the plan also galvanized a growing movement among public health officials that believed sugary drinks were an outsize contributor to the nation’s runaway obesity rates. Officials in cities like Los Angeles and Cambridge, Mass., considered their own crackdowns on soda, a trend that further worried the soft drink industry. “Their intention may be good,” Mr. Warfield said of the city. “They went about this with an imperial hand.”
The soft drink industry had viewed the fate of the city’s rules as a global bellwether on government regulation of sugary drinks.
In court, the industry’s lawyers, from the high-powered corporate firm Latham & Watkins, presented their argument in high dudgeon, calling the rules “ludicrous” and dreamed up by “scientists in the room, working with the mayor, creating a regulation here that is going to cost people a ton of money.” The industry also suggested that small businesses would be unfairly hurt by the rules.
Attorneys for the administration offered a more subdued, highly technical rebuttal that only occasionally addressed the broader public health rationale for the plan. At one point, a city lawyer who had mumbled his words was asked by the court reporter to repeat his points, because she could not hear him.
On Monday, a spokesman for the American Beverage Association said the court decision “provides a sigh of relief.”
“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,” the spokesman, Christopher Gindlesperger, wrote.
It is unclear if the appeal of the case will be resolved before Mr. Bloomberg leaves office at the end of this year. His would-be successors are mixed in their views of the measure, and may not share his zeal on the issue.
The mayor appears increasingly preoccupied with his legacy, and recently hired two public relations advisers — a former Times editor, Arthur Pincus, and a former television reporter, Andrew Kirtzman — to shape the public perception of the Bloomberg era.
Asked on Monday if he was concerned that a drawn-out legal battle over the soda limits could spill into the administration of a successor who does not favor them, Mr. Bloomberg, sounding a bit irked, muttered, “All of our time is running out,” before saying, “I don’t know who is going to be my successor.”
The mayor added: “People are dying every day. This is not a joke. This is about real lives.”

Michael Barbaro, David W. Chen and Kate Taylor contributed reporting.