Updated: A judge has nixed a portion-control regulation that was set to go into effect Tuesday, stopping New Yorkers from being able to buy super-sized sugary drinks at restaurants, movie theaters, sports venues and street carts in New York City.
New York Supreme Court Judge Milton Tingling ruled Monday that the city may not enforce the new regulation.
Tingling said the regulation, as it was written, was both “capricious” and “arbitrary” because it applied to some, but not all establishments.
“It excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, the loopholes inherent in the Rule, including but not limited to limitations on re-fills, defeat and/or serve to gut the purpose of the Rule,” Tingling wrote in his ruling.
Mayor Michael Bloomberg’s office immediately responded to the decision, saying via Twitter “We plan to appeal the sugary drinks decision as soon as possible, and we are confident the measure will ultimately be upheld.”
The Mayor’s office also said it believes it has “the legal authority and responsibility to tackle causes of the obesity epidemic, which kills 5,000 NYers a year.”
However, Tingling wrote that the court “expressed concern about the administrative agency having a virtually limitless authority.”
“This court agrees that the regulation herein takes the issue to new heights,” he wrote. “The Portion Cap Rule, if upheld, would create an administrative Leviathan and 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 judge stated in the ruling.
The cola crackdown was to go into effect on Tuesday. The new regulation would have put a 16-ounce limit on sugary drinks and applies to both bottled and fountain drinks.
The ban did not include grocery or convenience stores that don’t serve prepared food. It also didn’t apply to diet soda, other calorie-free drinks or anything that has at least 50 percent milk or milk substitute.
Restaurants, street carts, coffee joints and other venues had spent the weekend getting ready for the upcoming clampdown before Monday afternoon’s decision.
“I definitely believe it’s going to hurt my business,” said Mary Cira of Pronto Pizza, who said she had to toss nearly a $1,000 worth of 20 ounce and 2 liter bottles of soda. She’ll also have to reprint her menus.
“I have a combo special with a 2 liter soda,” she said.
“Personally, I think it’s ridiculous,” a coffee cart operator named Peter told 1010 WINS’ Glenn Schuck “It’s going to slow things down because I’m going to have to put the sugar on the side.”
Other establishments like Dunkin’ Donuts had posted colorful fliers explaining the complex rules surrounding coffee.
For example, Lattes were exempt because they’re more than half milk and it’s ok for customers to fill their own cups of large coffee with all the sugar they want.
Mayor Michael Bloomberg has said the ban is a way to fight a growing problem of obesity in the city. On Monday, he released new data that officials said shows “the strong correlation between sugary drink consumption and obesity.”
It found that nine of the top 10 neighborhoods in New York City with the highest obesity rates were also the highest in sugary drink consumption, according to city officials.
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