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NYC appeals decision to strike down sugary drink ban

Earlier this month, Judge Milton Tingling called the measure “arbitrary and capricious” because of its many loopholes

Large sugary drinks won an eleventh-hour reprieve earlier this month, when a judge struck down New York City Mayor Michael Bloomberg’s proposed ban on the oversized beverages one day before it was set to take effect. But that relief will be short-lived, if attorneys for the city have their way.

According to the city, Judge Milton Tingling’s March 11 ruling contained “critical” errors. One of these alleged mistakes was the judge’s finding that the city’s Board of Health exceeded its authority by passing the ban because the health board typically deals with acute and pestilent diseases, not chronic conditions such as obesity.

"The Board has protected the health of New Yorkers from chronic and preventable diseases and conditions—including cardiovascular disease—through its authorized powers to fluoridate the water supply, restrict the use of lead paint, require the posting of calorie counts on menus, and limit the use of trans fats at food service establishments," the city wrote in its brief, Thomson Reuters reports.

City attorneys also disagreed with Tingling’s conclusion that the ban’s many loopholes—it excludes many milk- and alcohol-based drinks, as well as beverages sold in grocery and convenience stores—rendered it “arbitrary and capricious.”

The proposed measure, which would have banned businesses such as restaurants, stadiums and delis from selling sugary drinks larger than 16 ounces, was just one of Bloomberg’s many public health initiatives. Just last week, the mayor announced a new proposal that would require stores to hide tobacco products in cabinets, under counters, behind curtains or in other concealed locations.

For more InsideCounsel coverage of food and beverage industry lawsuits, see:

New York City grants three-month reprieve from sugary drink fines

Beverage industry groups sue to block NYC sugary drink ban

PETA sues California restaurant for violating foie gras ban

ABC news sued for defamation over “pink slime” reports

Cleveland judge strikes down law banning trans fats

Nutella settlement is sweet for plaintiffs’ attorneys

Alanna Byrne

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