There’s many a slip ‘twixt the large cup ban and lip
In what The New York Times calls “an unusually critical opinion,” Tingling wrote that the under Bloomberg administration the Board of Health had become “an administrative Leviathan” that enacted rules and laws “limited only by its own imagination.” The judge also deemed the beverage rule “arbitrary and capricious”:
[N]oting [the serving size limits] would apply only to certain sugared drinks – dairy-based beverages like ilkshakes, for instance, would be exempt – and be enforced only in certain establishments, like restaurants and delis, but not others, like convenience stores and bodegas. The rules, the judge wrote, would create “uneven enforcement, even within a particular city block, much less the city as a whole.”
Characteristically, Bloomberg vowed to challenge the ruling (“We believe that the judge’s decision was clearly in error, and we believe we will win on appeal.”), initiating “a lengthy legal fight that could outlast the mayor's term in office and affect the balance of power at City Hall,” The Wall Street Journal reports:
Lawyers for both the city and the restaurant and beverage groups that challenged the law are expected to battle through two levels of state appellate courts. …
At issue is the power of the Board of Health, the body appointed by the mayor that approved the rule preventing restaurants and other venues from selling sugary drinks larger than 16 ounces. Part of state Supreme Court Judge Milton Tingling's reasoning for striking down the ban was that the board—an arm of the executive branch of city government—had usurped the power of the City Council, the legislative branch.
The Board of Health has issued unilateral rules about food before, notably banning artificial trans fats in 2006. But the City Council later agreed to that prohibition. Mr. Bloomberg has ruled out asking it to approve the sugary drink ban.
"This decision is not about soda, nor about obesity," said Matthew Geller, who represents a group of theater owners who challenged the ban. "It is about power. The decision illustrates that the mayor and the Department of Health exceeded their authority as the legislative branch, and violated the separation of powers."
Asked and answered (but someone wasn’t paying attention)
- Mediaite, February 28, 2013
- The Washington Examiner, January 15, 2012