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NYC Files Notice Of Appeal Of Judge’s Decision Halting Large Sugary Drinks Ban

Bloomberg Hints His Support May Not Go To Any Mayoral Candidate Against Ban
Mayor Michael Bloomberg (Photo by Allison Joyce/Getty Images)/ A 32-ounce soda (Photo by Mario Tama/Getty Images)

Mayor Michael Bloomberg (Photo by Allison Joyce/Getty Images)/ A 32-ounce soda (Photo by Mario Tama/Getty Images)

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NEW YORK (CBSNewYork) — The Bloomberg Administration moved forward Tuesday afternoon with its appeal of a judge’s decision to halt New York City’s ban on super-sized sugary drinks.

“We are moving forward immediately with our appeal,” said corporation counsel Michael Cardozo. “We believe the judge was wrong in rejecting this important public health initiative. We also feel he took an unduly narrow view of the Board of Health’s powers.”

Mayor Michael Bloomberg called the judge’s ruling a “temporary setback.”

Speaking at a Midtown restaurant that is voluntarily adopting the city’s big drink policy, Bloomberg defended the ban.

WEB EXTRA: Read The Judge’s Ruling (pdf)

“Despite yesterday’s temporary setback, I don’t think there’s any doubt that momentum is moving in our direction,” Bloomberg said. “But while the legal case plays out, the conversation we started about the dangers of the portion sizes of sugary drinks has prompted many people — to take action.”

“This was a setback for the people who are dying,” he added, saying the decision to halt the ban didn’t affect him personally. “In case you hadn’t noticed, I watch my diet.”

New York City Health Commissioner Dr. Thomas Farley told CBS 2′s Marcia Kramer, “We have all been super-sized and we’re paying the price for that in or own health. We’re paying the price for that in our children’s health. And somewhere along the line it has to stop.”

In his ruling against the ban Monday, Manhattan Supreme Court Judge Milton Tingling said the restrictions were both “capricious” and “arbitrary” because they only applied to some sugary drinks and certain places that sell them.

The regulation, which was set to go into effect Tuesday, would have put a 16-ounce limit on sugary drinks sold at city restaurants, movie theaters, sports venues and street carts and applied to both bottled and fountain drinks.

But the ban did not include grocery or convenience stores that don’t serve prepared food and did not apply to diet soda, other calorie-free drinks or anything that has at least 50 percent milk or milk substitute.

“It applies to some but not all food establishments in the city. It excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds,” Tingling wrote in a 36-page ruling. “The loopholes in this rule effectively defeat the stated purpose.”

Tingling also found that the regulation was “laden with exceptions based on economic and political concern.”

In addition, the judge said the Board of Health encroached on the authority of the City Council when the ban was imposed last year.

“One thing not seen in any of the Board of Health’s powers is the authority to limit or ban a legal item under the guise of ‘controlling chronic disease,’” Tingling wrote.

He also wrote that the court “expressed concern about the administrative agency having a virtually limitless authority.”

“This court agrees that the regulation herein takes the issue to new heights,” he wrote. “The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine. The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar-sweetened beverages,” the judge said.

The American Beverage Association applauding the judge’s decision, saying “the court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban.”

While some venues had held off making changes to their menus because of the court challenge against the ban, others spent time and money switching out glasses and cups and informing customers of the new rules.

“It’s like, what took them so long to jump on this somewhat silly seeming ruling,” said Cary Henderson, manager of Brother Jimmy’s BBQ.

But the owner of Lucky’s Cafe at First Avenue and 34th Street said he is voluntarily ditching 20-ounce bottles of soda.

“The end of the day, it’s not only about business, it’s also about maybe we can make a difference a little bit,” owner Greg Anagnostopoulos told 1010 WINS’ Glenn Schuck. “There’s no greater feeling or sense of accomplishment than helping somebody.”

The mayor thanked Anagnostopoulos for his “common sense.”

“If we offer you a 64-ounce and you drink it all, I think that’s the worst thing you could do,” Anagnostopoulos told WCBS 880′s Alex Silverman. “It’s like shoving a cake down your throat, a whole cake.”

Health Commissioner Farley urged other restaurants to follow suit and “do the responsible thing” by voluntarily serving “portion sizes that are appropriate to humans.”

Bloomberg also pointedly sent a message to the candidates who want to be mayor — and who might want his support, including possibly City Council Speaker Christine Quinn –  that this might be a make-or-break issue.

“If the job of saving your life or at least giving you the information to save your life isn’t the primary purpose of being elected,  I don’t know why you’d waste your time doing it. And I don’t think you should be elected if that isn’t what you’re trying to do,” the mayor told CBS 2′s Kramer.

Quinn, the current Democratic frontrunner, disagrees with the soda ban.

“Because my fear is, with issues around food and obesity, if you say ‘no’ people have almost a reflux action to do it,” Quinn said.

Making sure she understood the depth’s of his displeasure, the mayor shared the spotlight Tuesday with  another Democratic  mayoral contender, Public Advocate Bill de Blasio.

“The mayor is absolutely right on this,” de Blasio said.

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