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NEW YORK — An appeals court on Tuesday unanimously upheld a decision striking down New York City’s restrictions on the sale of large, sugary drinks, dealing a serious blow to Mayor Michael R. Bloomberg’s hopes of reviving the rule before his term runs out.

The court, the Appellate Division of State Supreme Court in Manhattan, concurred with a lower court’s ruling that the city’s Board of Health, appointed by the mayor, overstepped its bounds as a nonlegislative body by approving the rule. The justices also said that the various exceptions and carve-outs in the rule demonstrated that the board was concerned with matters beyond its simple mission to improve public health.


“Such mechanism necessarily looks beyond health concerns, in that it manipulates choices to try to change consumer norms,” Justice Dianne T. Renwick wrote. The board, the decision stated, “violated the state principle of separation of powers.”

Seeking to reduce runaway obesity rates, the rule was announced by Bloomberg in May 2012 and approved by the health panel in September. The measure would have prohibited the sale of many sweetened drinks in containers larger than 16 ounces, but the appeals court wrote that the rule was laden with confusing loopholes and exemptions.

Only establishments that received inspection grades from the city’s health department, including movie theaters and stadium concession stands, would have been subject to the ban. Those with self-service drink fountains, like most fast-food restaurants, would be prohibited from stocking cups larger than 16 ounces. Meanwhile, vending machines and some newsstands would be exempt, along with convenience stores. The signature 64-ounce Big Gulp at 7-Eleven would escape the soda ban unscathed.

The rule also would not have affected fruit juices, dairy-based beverages like milkshakes and mixed coffee drinks, no-calorie diet sodas, or alcoholic beverages.

New York Times