State Update

Appeals Court Rules New York City Overstepped by Limiting Soda Sizes

(Local Policy) Permanent link   All Posts

On July 30, the New York Supreme Court, Appellate Division, First Department ruled that the New York City Board of Health overstepped its boundaries and authority when it instituted the Sugary Drinks Portion Cap Rule, also known as the “Soda Ban.” The New York City regulation limited the size of sugar-sweetened drinks available for purchase at restaurants, street carts, movie theaters and sporting events to 16 ounces.

As you recall, the American Beverage Association, joined by several New York restaurant and business groups, filed a lawsuit in the fall of 2012, aiming to overturn the restriction, arguing in part that the Board of Health did not have the authority to ratify the new rules unilaterally. In March 2013, the Supreme Court of the State of New York, County of New York enjoined and permanently restrained the Board of Health from enforcing the soda ban regulation one day before the regulation was to take effect. Justice Milton A. Tingling writing for the Supreme Court noted that the city regulation was “arbitrary and capricious.” The City of New York (City) then filed an appeal, which was denied by the New York Supreme Court, Appellate Division, First Department on July 30.

In response to the July 30 ruling, Mayor Michael Bloomberg (I-NY) stated, “Today’s decision is a temporary setback, and we plan to appeal this decision [...].” Mayor Bloomberg has been quite vocal about his strong support for the increased regulations of sugary beverages.

The City has moved for leave to appeal to the New York State Court of Appeals (the State's highest court) challenging New York City's portion cap rule on sugary drinks. The motion, dated August 2, is the first step towards the City's appeal. It formally requests that the New York State Court of Appeals review the case. The City also asks that an appeal be handled on an expedited basis. According to staff from the New York City Law Department (the City’s attorneys), the other side's response to the City's motion is due August 12. Thereafter, the Court of Appeals would decide on the motion. Any further calendar dates would be set by the Court after that point.