New York state judge Milton Tingling tore Mayor Bloomberg’s ban on large sodas to shreds in a lengthy and scathing opinion that essentially said the mayor’s office was making a huge power grab.Bloomberg pushed for the ban on drinks larger than 16 ounces at fast food places, movie theatres, and other establishments — but it wouldn’t have applied to bodegas and grocery stores.
The city’s board of health adopted the rule banning drinks after Bloomberg proposed it. The ban never went through the city council for approval.
Tingling said the rule was filled with so many loopholes that it didn’t make sense, and that it gave the mayor’s office too much power. In doing so, he bought arguments the American Beverage Association and other industry groups made when fighting the ban in court.
In their petition to the court, the beverage groups say the executive branch essentially bypassed the city council to get the soda ban passed.
“The power to enact new policy is reserved to the legislative branch,” they argued. “The executive enforces the law, but it may not usurp the legislature’s authority to create it, whether by executive order, administrative fiat, or agency rulemaking. These principles are fundamental to the separation of powers in New York.”
In siding with the beverage groups, Tingling had this to say: The soda ban “if upheld, would … 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 Bloomberg administration said it was stepping in to get the rule enacted because New York lawmakers had failed to address the issue, but Tingling rejected that argument.
“There is no rational argument purporting to demonstrate legislative inaction in this area,” he wrote. “Addressing the obesity issue as it relates to sugar-sweetened drinks, or sugary drinks, is the subject of past and ongoing debate withint the city and state legislatures.”
Latham & Watkins LLP lawyer James Brandt, who represented the American Beverage Association, called the ban “grossly unfair” when arguing the case in court in January, the Washington Post reported.
“It’s not going to stop anybody from drinking soda, your honour,” Brandt said.
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