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Appeals Court Strikes Down Supersized Sugary Drinks Ban

Court: Board Of Health Exceeded Legal Authority; Bloomberg Vows To Fight On

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NEW YORK (CBSNewYork) – It looks like supersized sugary drinks in New York City are staying on the menu.

In a unanimous opinion, an appeals court upheld a lower court’s decision Tuesday, saying the Board of Health’s plan to put a 16-ounce limit on sugary drinks was an illegal overreach of executive power.

The four-judge panel of the state Supreme Court Appellate Division said the Board of Health was acting too much like a legislative body when it created the ban and said it didn’t believe sugary drinks were “inherently harmful.”

Mayor Michael Bloomberg spoke out against the court’s ruling while at a ribbon-cutting event in Midtown on Tuesday afternoon.

“Yeah, it’s disappointing. There are an awful lot of people dying from the effects of overweight. It is the single biggest, fastest problem in this country. It’s particularly a problem among poor people,” Bloomberg told WCBS 880′s Marla Diamond.

The judges also said the board appeared to have created much of the new rules on political or economic considerations, rather than health concerns.

Justice Dianne Renwick wrote, “The selective restrictions enacted by the Board of Health reveal that the residents of New York City was not its sole concern.  If it were a soda ban it would apply to all public and private enterprises in New York.”

The American Beverage Association was thrilled with the ruling.

“We are pleased that the lower court’s decision was upheld. With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City,” it said in a statement.

“The courts clearly agreed with our position that this was an illegal usurpation by an executive agency,” Matt Greller with the National Association of Theater Owners of New York said.

The ban on sugary drinks has always been a tough sell to New Yorkers, who also sounded pleased on Tuesday.

“It’s America. You can’t tell us what to drink. We make our own choices. That’s what’s great about this country,” said Kenny Thomas of the Bronx.

“People should be given the chance to choose to what they want to do with there bodies. If I want to be fat, let me be fat,” added Jemimah Davis of Riverside.

The decision brought a swift response from Mayor Bloomberg. In a statement, he called the ruling “a temporary setback.”

“We plan to appeal this decision as we continue the fight against the obesity epidemic,” he said.

The mayor added that obesity and type 2 diabetes are clearly linked to the consumption of sugary drinks and said since the ban was halted in March, “more than 2,000 New Yorkers have died from the effects of diabetes.”

The city’s law department also promised an appeal.

“There is broad precedent for the Board of Health to adopt significant measures to protect New Yorkers’ public health,” attorney Michael Cardozo said in a statement.

Health Commissioner Thomas Farley disagreed with the court’s ruling saying the Board of Health has the right to protect people against public health crises.

“The Board of Health has authority under the city charter to address public health crises exactly like this,” Farley told 1010 WINS. “We have now over 5,000 people per year who are dying of causes related to diabetes and the biggest driver of that is obesity and the biggest driver of the obesity epidemic is sugary drinks.”

“It’s worth pointing out that the judges didn’t rule on whether this was a good idea or not,” Farley told CBS 2′s Dick Brennan. “They ruled on whether the Board of Health had the authority to pass this rule.”

The ban enacted by the Board of Health last year applied to both bottled and fountain drinks sold at city restaurants, movie theaters, sports venues and street carts.

It 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.

In his ruling against the ban in March, 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.

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

Greg Anagnostopoulos, the owner of Lucky’s Cafe at First Avenue and 34th Street, voluntarily ditched large bottles of soda in March and despite the latest court ruling, Anagnostopoulos said he still will not serve supersized sugary drinks at his establishment.

“I agree with being healthy and not overeating and getting help from people that care as well,” Anagnostopoulos said.

Bloomberg has argued the ban was well within the Board of Health’s jurisdiction and was needed to improve the health of New Yorkers.

Critics have said the regulation won’t make a meaningful difference and would unfairly hurt some businesses while sparing others.

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