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NYC soda restriction officially dead

The New York Court of Appeals ruled that New York City’s health department overstepped its bounds when it restricted the size of sodas.

AP/file 2012

The New York Court of Appeals ruled that New York City’s health department overstepped its bounds when it restricted the size of sodas.

NEW YORK — The Bloomberg big-soda ban is officially dead.

The state’s highest court Thursday refused to reinstate New York City’s limits on sales of jumbo sugary drinks, exhausting the city’s final appeal and handing a major victory to the U.S. soft-drink industry, which bitterly opposed the plan.

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In a 20-page opinion, Judge Eugene F. Pigott Jr. of the New York state Court of Appeals wrote that the city’s Board of Health “exceeded the scope of its regulatory authority” in enacting the proposal, which was championed by former Mayor Michael R. Bloomberg.

Two lower courts had already ruled against the city, saying it overreached in trying to prohibit the purchase of sugared drinks in containers larger than 16 ounces, about the size of a medium coffee cup. Ruling 4-2, the Court of Appeals upheld the earlier rulings.

Mayor Bill de Blasio, a frequent critic of Bloomberg but a supporter of the soda proposal, said he was “extremely disappointed” by the latest decision, saying it was “irrefutable” that sugary drinks have detrimental effects on health. The mayor said he would review other options for the city to combat obesity, but his team did not immediately specify what steps might be taken.

In the ruling, the judges said the City Council was the proper body to enact a policy of such sweep and complexity as the soda limits. The council speaker, Melissa Mark-Viverito, opposes the proposal, and she said Thursday that she was pleased with the court’s decision.

The Court of Appeals ruling will most likely be seen as a significant defeat for public health advocates who have urged state and local governments to discourage the consumption of high-calorie beverages, saying the drinks are prime drivers of a nationwide epidemic of obesity.

And it could also have long-term implications for the powers of the Board of Health, the agency that has been the primary engine behind high-profile health initiatives like banning trans fats in restaurants and posting calorie counts on menus.

In a blistering dissent of the opinion, Judge Susan P. Read wrote that the ruling ignored decades of precedent in which the Board of Health was given broad purview to address public health matters, such as regulating the city’s water supply and banning the use of lead paint in homes.

The opinion, Read wrote, “misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century.”

One judge in the majority, Sheila Abdus-Salaam, seemed to share those concerns, writing in a separate concurrence that “no one should read today’s decision too broadly.”

Dr. Mary T. Bassett, the city’s health commissioner, said in a statement that the ruling “does not change the fact that sugary-drink consumption is a key driver of the obesity epidemic.”

“We will continue to look for ways to stem the twin epidemics of obesity and Type 2 diabetes by seeking to limit the pernicious effects of aggressive and predatory marketing of sugary drinks and unhealthy foods,” Bassett said.

Bloomberg’s proposal, which polls showed was opposed by a majority of New Yorkers, set off a global debate over soda consumption. It also prompted panic among powerful beverage companies, who feared that their products could be widely branded as a threat to public health.

Questions about the workability of the city’s plan were raised from the start. Because of jurisdictional quirks, not all businesses involved with selling food and beverages would have been affected. The rules would have covered places like fast-food franchises, delis and movie theaters, but convenience stores and grocery markets would have been exempt. And while the limits would have applied to a broad menu of popular drinks, there were a large number of exceptions: Sports drinks and sweetened teas were included, but milkshakes, fruit juices and alcoholic beverages were not.

The soft-drink industry, through lobbying and public-relations campaigns, has helped defeat soda taxes and other regulatory measures in states and municipalities around the country. After Bloomberg announced his plan in May 2012, the industry poured millions of dollars into an ad campaign that framed the proposal as infringing on consumer freedom. The industry later retained the law firm of Latham & Watkins to challenge the limits in court.

The American Beverage Association, the industry’s trade group, said in a statement that it was “pleased” with the Court of Appeals ruling, saying the proposal “would have created an uneven playing field for thousands of small businesses in the city and limited New Yorkers’ freedom of choice.”

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