Legal challenges to New York sugary drink ban may fail

Experts expect Mayor Bloomberg’s proposal to pass, say questioning its constitutionality may be only chance

Despite seemingly getting flayed in the court of public opinion last week, New York Mayor Michael Bloomberg may not have much trouble defending his controversial drink ban in a court of law.

Reuters yesterday reported that experts tend to agree that if any of the industry groups that would be affected by the potential ban filed lawsuits seeking to quash the proposal, they likely would be hard-pressed to prevail.

Mayor Bloomberg made waves last week when he announced that he plans to enact a far-reaching ban on the sale of large sodas and other sugary drinks in restaurants, movie theaters, sports arenas, delis and street carts. Under the new proposed ban, nearly every type of sugary drink would be affected, including coffees, energy drinks and pre-sweetened iced teas. Diet sodas, fruit juices, dairy-based drinks such as milkshakes or malts or alcoholic beverages would not be affected.

If enacted, drink sellers would not be allowed to sell any cup or bottle of sweetened beverage larger than 16 fluid ounces, which is about the size of a medium coffee and less than the common plastic soda bottle. New Yorkers could, however, purchase multiple 16-ounce sugary drinks to slake their allegedly unhealthy, mammoth thirst, and would be free to purchase sizes larger than 16 ounces at grocery stores. There also would be no restrictions against free refills.

Mayor Bloomberg’s proposal, which would amend the city’s administrative code to imbue the health department with the power to levy fines on offending drink peddlers, is expected to be passed by the health board and take effect in March 2013. Such a ban would be a first across the nation.

"There are so many examples where states impose standards on consumer products sold within their borders," says Harvard University professor of law and public health Michelle Mello, Reuters reports. "It seems hard to believe that this would be singled out as unreasonable by a court."

Reuters says that industry interest groups, such as the National Restaurant Association or the American Beverage Association, are more likely than individual companies to file lawsuits challenging the ban, but it’s too soon to tell what specific legal claims they may present.

However, it reports that attorneys who work with the food and beverage industries as well as public health law experts said their best bet in challenging the proposal would be a federal lawsuit claiming a constitutional violation of the commerce clause, or that the law has no rational basis.

If the rational basis tack is taken, courts could quash the law on the basis that it’s unconstitutional and not rationally related to governmental interest. Conversely, Reuters says that experts on both sides agreed that the city of New York has a vested interest in protecting its citizens’ health. Therefore, the city would have to prove that the drink ban would lower the consumption of sugary drinks and, by doing so, would reduce obesity among New York residents and benefit public health.

Regardless of what happens, one New York resident has definitively come out on the “quaff as much as you want” side of the fence.

Last week, The Daily Show’s Jon Stewart quipped that the law “combines the draconian government overreach people love with the probable lack of results they expect,” while sucking down a gargantuan movie theater soda.

For more on the prospects of blocking New York’s proposed drink ban, read Reuters.

And for more from InsideCounsel on the ban and other food fights, read:

New York mayor moves to ban sugary drinks, California cracks down on foie gras

Class Action Lawsuit Against McDonald's Attacks Marketing to Children

Judge throws out Happy Meal lawsuit

Join the Conversation

Advertisement. Closing in 15 seconds.