State Supreme Court Justice Milton Tingling said the restriction was arbitrary because it applies to only some sugary beverages and some places that sell them. For various reasons, it doesn’t cover alcoholic drinks or many lattes and other milk-based concoctions. Nor does it doesn’t apply at supermarkets or many convenience stores — including 7-Eleven, home of the Big Gulp.
“The loopholes in this rule effectively defeat the stated purpose,” Tingling wrote in a 36-page ruling that examined the scope of power that should be afforded an administrative board for regulations.
Tingling, a Democrat elected to the trial court bench in 2001, said the Bloomberg-appointed Board of Health intruded on the elected City Council’s authority when it imposed the rule. He cited in part a case from the 1980s which questioned whether a state public health council had the authority to regulate smoking in public places.
The appeal likely will turn on whether a higher court “feels that the mayor has gone too far in ruling by decree in bypassing City Council,” said Rick Hills, a New York University law professor who has been following the case.
In defending the rule, city officials point to the city’s rising obesity rate — about 24 percent of adults, up from 18 percent in 2002 — and to studies tying sugary drinks to weight gain.
The judge acknowledged the impact of obesity on the city’s residents, and noted that those bringing suit likewise didn’t dispute obesity is a significant health issue, but questioned how much sugary drinks can be blamed for it. Ultimately Tingling said whether the issue of obesity is an epidemic is not the key issue here, but whether the board of health has the jurisdiction to decide that obesity is such an issue that it could issue a cap on consumption of sugary drinks.
The judge found that the regulation was “laden with exceptions based on economic and political concern.”
Critics said the measure was too limited to have a meaningful effect on New Yorkers’ waistlines. And they said it would take a bite out of business for the establishments that had to comply, while others still could sell sugary drinks in 2-liter bottles and supersized cups.
While some eateries held off making changes because of the court challenge, some restaurants had begun using smaller glasses for full-sugar soda. Dunkin’ Donuts shops have been telling customers they will have to sweeten and flavor their own coffee. Coca-Cola has printed posters explaining the rules.
Frames Bowling Lounge, a bowling alley and upscale bar in Manhattan, developed — and is keeping — a slate of fresh-squeezed juices as an alternative to pitchers of sodas for family parties. That entailed investing staff time, buying new glasses and changing menus, executive general manager Ayman Kamel said.
“All that cost a lot of money, but you have to go with the flow,” he said, and customers have started calling about the new juices.
“We’re all very excited about it,” he said.