New York City Big Soda Ban Revived By Mayor De Blasio: Will Law Be Ruled Unconstitutional Again?

big gulp
New York City’s Board of Health asked the state's court of appeals to reinstate Bloomberg’s soda ban, which prohibits businesses from selling sugary drinks in containers larger than 16 ounces. Russell Bernice, CC-BY-2.0

Mayor Bill de Blasio of New York City has decided to walk a mile in the well-worn shoes of former mayor Michael Bloomberg in the name of community health. On Wednesday, the city’s Board of Health asked the court of appeals in Albany to reinstate Bloomberg’s Portion Cap Rule (the so-called soda ban), which prohibits restaurants and other businesses from selling sugary drinks in containers larger than 16 ounces.

The question on everyone’s mind is: Can de Blasio succeed where Bloomberg failed?

In a new twist on an old law, the city is now arguing that the Board of Health “has legislative authority in the area of public health” and so any previous ruling under the Bloomberg administration does not apply. In support of its argument, the board said its authority has been previously exercised and repeatedly upheld by the courts — in such instances as “requiring fluoridation of the water supply and posting of calorie counts on menus, and by restricting the use of lead paint in residences and trans fats in restaurants.” A summary of the city’s argument further notes that the board’s “special structure” allows serious issues of public health to be addressed “without being subjected to the vagaries of the political process." (Do you mean those vagaries that protect citizen’s constitutional rights?)

History of the Big Ban

In 2012, then-mayor Bloomberg presumably feeling victorious after successfully banishing public smoking, declared war on the popular, oversized sugary beverages. In his attempt to combat obesity, Bloomberg proposed a regulation prohibiting restaurants, fast-food chains, delis, movie theaters, sports stadiums, food carts, and similar businesses from selling soda or any sugar-sweetened drink in a cup 16 ounces or larger.

Just one day before the new law was to take effect in March 2013, a court declared the law unconstitutional, a decision that was next upheld in July by a state appeals court. In its decision, Reuters reported at the time, the state supreme court's appellate division stated any regulation prohibiting businesses from selling the large drinks "violated the state principle of separation of powers."

In trying to impose the ban, then, Bloomberg was seen as overstepping his authority. Will the courts view de Blasio in the same light?

“The link between sugary drinks and obesity is no longer in question,” stated Dr. Mary T. Bassett, the city’s health commissioner, in a press release announcing the decision to revive Bloomberg’s failed regulation. “What we do need to question is the beverage industry's continued promotion of these unhealthy products in communities most burdened by obesity and diabetes.”

The decision on the case, New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, New York State Court of Appeals No. 134, is forthcoming.

“We are confident the rule will be upheld and that New York City will continue to innovate and work to protect all New Yorkers from the illnesses that threaten the health of our population,” Bassett said, further noting the regulation to be “a necessary and important step toward improving the health of New Yorkers regardless of their zip code.”

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