The ruling of the New York State Supreme Court Appellate Division for the First District makes it quite clear that food scolds were right to be worried that the New York City large-soda ban would not be resurrected: The court unanimously upheld the ruling declaring the ban invalid. Your “big gulp of freedom” remains safe for now.
The court ruled that by going through the unelected Board of Health rather than the New York City Council, Mayor Michael Bloomberg’s administration violated state administrative law. Justice Dianne Renwick, writing for a unanimous panel, noted that “that the [NYC Board of Health] has never categorized soda and the other targeted sugary drinks as inherently unhealthy.” In the panel’s reasoning, that meant that “the Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks.”
Bloomberg, whose mayoralty will end December 31, vowed to continue fighting the case up the appeals chain. The administration dismissed the ruling as a “temporary setback,” but if the Court of Appeal (New York’s high court) does not take up the case, beverage freedom in the city will live on and the Bloomberg soda ban will die an un-mourned death. (Majorities of New Yorkers have consistently opposed the measure, and national polls suggest efforts to expand the harebrained scheme will not be appreciated.)
With research even finding that the ban — deemed “arbitrary and capricious” by the lower court — might have led to increased calorie intake, perhaps it is past time for the city’s overzealous nanny and his legion of bureaucrats to heed the courts’ rulings and back down. But with Bloomberg’s legacy on the line, expect the city’s “It’s but a flesh wound!” attitude to sink taxpayer money into defending the invasive regulation until all their options run out.