New York Judge Nixes Super-Size Soda Ban

A state court judge has voided New York City’s much discussed (and much derided) ban on the sale of large sugary drinks, the New York Post reports.   The ban was slated to take effect tomorrow.  Due to the judge’s ruling, however, NY health inspectors won’t have to run around testing drink sizes and coffee sellers will still be able to add sugar to large drinks.  (Lattes and the like were exempted, however, due to their milk content — further evidence of the law’s udder irrationality.)  Here is the opinion, and more coverage from the WSJReason, and Reuters.

UPDATE: NYU’s Rick Hills comments:

Justice Milton Tingling of the New York supreme court (that’s a trial judge for you non-New Yorkers) struck down Mayor Bloomberg’s soda portion cap this afternoon, citing the state non-delegation doctrine and the state’s administrative law constraint on arbitrary and capricious rule-making. The essence of the opinion is that defining soda portion size is above the Department’s pay grade, because it is “legislative” in character, a major policy requiring the imprimatur of City Council. . . .

In favor of Justice Tingling’s anti-paternalism canon is that the doctrine simply forces Mayor Bloomberg to apply to the City Council to make controversial policy decisions. As I have elsewhere noted with respect to taxis, the Mayor has been excessively prone to bypass Council, either applying to Albany for direct state legislative authority or simply ruling by executive decree (or by the decree of mayoral sock puppets like the Department of Health).

But one might complain that judicial glosses on statutes, derived from nothing more than the judge’s libertarian suspicion that an agency’s intervention into the market is too novel or meddling, over-extend judicial power even as they constrain agencies’ power. The Department of Health is, after all, an executive agency that is supposed to pursue policy goals. The supreme court is, by contrast, supposed to construe law. It is hard for me to see, as a matter of law, why City Charter section 556’s capacious grant of power to the Department of Health, as a matter of law, does not include a mandate to limit portion size as an imperfect means for reducing obesity. There can be no serious doubt that Bloomberg’s cup size rule is a good-faith effort to address obesity. Yes, lots of stores were exempted — but can anyone reasonably expect City health inspectors to start visiting every retail outfit with a soda fountain? Yes, the measure is probably too timid to do much good (as its critics who favor more regulation complain) — but are agencies really bound to do everything about a problem or nothing at all? No, the rule does not cover milk-based drinks — but, undoubtedly if it had done so, then you can bet that the National Dairy Council would be suing on the ground that milk-based drinks are too nutritious to be lumped with soft drinks made essentially of sugar and water. . . .

Justice Tingling’s opinion looks like a libertarian canon masquerading in non-delegation trappings. Maybe that sort of canon is good judicial policy. But I’d rather take my policy from Bloomberg, as meddlesome as he can be, than a judge.


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