The four-judge appeals court panel ruled unanimously today (July 30) that the ban, imposed by the City’s Board of Health through an administrative rule, violated the U.S. Constitution’s provision detailing the separation of powers.
The court said it was the prerogative of the legislature to impose the ban through the enactment of a law, not the government through an administrative ruling.
Bloomberg unilaterally imposed what’s known formally as the Portion Cap Rule earlier this year.
What the court said: The health agency “ignores the fact that the ‘soda ban’ does more than just target a specific food category. It also ignores that the Board has never categorized soda and the other targeted sugary drinks as inherently unhealthy. In essence… it prescribes a mechanism to discourage New Yorkers from consuming those targeted sugary drinks by dictating a maximum single portion size that can be made available in certain food service establishments. Such mechanism necessarily looks beyond health concerns, in that it manipulates choices to try to change consumer norms.”
But the measure, heatedly opposed by the city’s movie theaters and fast-food restaurants, never really got off the ground.
The National Association of Theatre Owners of New York State and other groups challenged the law in New York’s lower court, known as the Supreme Court. It blocked its implementation in March. The city appealed the ruling to the state appellate court, arguing that the city had the power to regulate health-related issues.
Beside questions of constitutionality, the appeals court also noted expressed concern that the ban included exceptions for sugary milk or juice drinks. It also questioned whether the board properly balanced “non-health factors,” according to the ruling.
The city administrative rule only applied to restaurants, theaters and workplace cafeterias. Supermarkets and convenience stores, where most kids buy large drinks were exempt.