A state appeals court has unanimously upheld a lower court’s decision to stop the Sugary Drinks Portion Cap Rule, more popularly known as the “Soda Ban.”

From Reuters:

New York City’s plan to ban large sugary drinks from restaurants and other eateries was an illegal overreach of executive power, a state appeals court ruled on Tuesday, upholding a lower court decision in March that struck down the law.

The law, which would have prohibited those businesses from selling sodas and other sugary beverages larger than 16 ounces, “violated the state principle of separation of powers,” the First Department of the state Supreme Court’s Appellate Division said in a unanimous decision.

The decision just came in within the last hour of this writing, so I haven’t had the chance yet to review the entire ruling.  So for now, I’ll give you the conclusion below and link you to the full decision.  Talk amongst yourselves.

In sum, we find that under the principles set forth in Boreali, the Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion [*15]Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners’ argument that the subject regulation was arbitrary and capricious.

Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH’s legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.

Accordingly, the order of the Supreme Court, New York County (Milton A. Tingling, J.), entered March 11, 2013, which, inter alia, granted the petition and declared invalid respondent New York City Board of Health’s amendment to New York City Health Code § 81.53 barring the sale of sugary drinks in a cup or container able to contain more than 16 fluid ounces, and enjoined respondents from implementing or enforcing it, should be affirmed, without costs.

You can listen to some of the Prof’s earlier thoughts on the matter from March, when he appeared as a guest on the Mark Carbonaro Show to discuss the earlier ruling by the lower court.

For now, enjoy your Big Gulps!  Slurpee for me.


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