Chalk up another loss for nanny state Mayor Michael Bloomberg and his desire to run the lives of the people who elected him. The New York Post notes that an appeals court today refused to overturn the injunction on Bloomie’s proposed soda ban, calling the regulation “invalid” because it violates “the principle of separation of powers.”
Writing for the Appellate Division, Justice Renwick also criticized Bloomberg and the Health Department for proposing a ban with giant loopholes, which would exclude colas and energy drinks but allow milkshakes and fruit juices.
Similarly businesses like delis and restaurants were prevented from hawking sugary beverages but 7-Eleven could still sell its signature Big Gulp.
The judicial panel said those inconsistencies go ‘beyond health concerns, in that it manipulates choices to try to change consumer norms.’
In March, a lower court judge enjoined the ban from becoming law. Manhattan Supreme Court Justice Milton Tingling stated that the law, which was designed to prohibit city restaurants, delis, and other businesses from selling sugary drinks in sizes larger than 16 ounces, represented an overreach of civic authority.
The four-judge Appellate Division concurred in its ruling today, writing:
Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority….
Despite the City’s argument to the contrary, the Board did not bring any scientific or health expertise to bear in creating the Portion Cap Rule. Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes.
But Bloomberg remains undeterred, calling the decision “a temporary setback” and vowing to take his case to the state’s highest court. In a statement, he added that since March when the ban was shot down, “more than 2,000 New Yorkers have died from the effects of diabetes.” He noted further that both diabetes and obesity “are disproportionately linked to sugary drink consumption.”
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