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Nanny Bloomberg’s Soda Ban Fizzles Again in Appeals Court

Nanny Bloomberg’s Soda Ban Fizzles Again in Appeals Court

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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Comments

“…the subject regulation was arbitrary and capricious.”

Points me to the previous post: Howard Dean and IPAB

Carol Herman | July 30, 2013 at 1:41 pm

Too bad there’s no HA HA stamp.

Meanwhile, in an article, yesterday, in the NY Post, an administrative judge was fired, and though she served 20 years, to rave reviews, the City’s Department wanted her to assign large fines for infractions. So you get to compare a fine she set to a local gas station of $700. When the department wanted her to charge $23,000.

As long as cities run into deficits they’re going to be highway robbers.

Though Mario Batali, who runs more than seven eateries (I think), in NYC, has installed “blinking lights” in his kitchen. As soon as an inspector comes through the front door, those “blinking lights” tell the cooks REMOVE EVERYTHING from the stoves! Put everything into garbage bags. AND RUN OUT OF THE KITCHEN! The manager then goes around to all the diners at the tables, and explains what has happened.

Basically, Batali is ordering (tops) a few hundred dollars worth of food to be wasted. And, business that night is reduced since none of the diners pay their checks. WHY? It’s cheaper than the minimum fine, which is a few thousand dollars.

Batali can be fined if someone is cutting vegetables without wearing plastic gloves. Or where a cook isn’t wearing a hairnet. Or where prepared foods are under 140-degrees. (I saw the article in the NY Post. And, I bet Batali’s “signaling the kitchen” has been adopted by others. Since the inspectors can come around at least twice a year.)

Isn’t it sad that laws are written so cities can make money, without caring one whit for the diners. Or for the owners of eateries.

Okay. Now you know it’s broken. And, the fix? Close everything down because it’s cheaper than the cheapest “compliance.”

Whoopie. Glad the system has judges. But think of an appeal as costing folk a minimum of $50,000.

You think money grows on trees?

So, exactly how much taxpayer money has gone to implement the failed Soda Ban, how much more to fight the original court case, and how much more yet to appeal it?

Or has Nanny Bloomie contributed from his billions?

Don’t they have better things to do besides argue for bans on Big Gulps? Like stop-and-frisk some more minorities, or something?

“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.”

They couldn’t stop with a ruling, could they? Citing the “wisdom” of it all they invited someone to find a “government body with the authority” and “great latitude and discretion” willing to exercise its “legitmate powers.” The Commissar in Albany and The Nanny have probably been on the phone by now. Sixteen ounces in a cup, seven rounds in a magazine. It’s their “duty” to “safeguard” us.

That paragraph just oozes condescension. They just can’t help themselves.

Henry Hawkins | July 30, 2013 at 8:24 pm

I couldn’t find a 32 oz soda to drink in celebration, so I ate five doughnuts instead. I’m a rebel.

That paragraph just oozes condescension. They just can’t help themselves

Naturally. This is the same court system that basically ruled there’s no such thing as an unreasonable cost or fee for the process of obtaining concealed carry permits.

All restaurants should have a crossed out 32 ounce soda with 2 16 ounce sodas underneath at the same price.

What’s next – bread? Then what – white rice and potatoes? Pretzels, hot dogs, oh don’t forget donuts! Let’s see – breathing the dirty air in NYC is also bad for your heath, so let’s ban breathing. Yeah that’s it Bloomy we can do that next! Big Brother is watching you.

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