A judge for the New York Supreme Court [official website] on Tuesday permanently enjoined [order, PDF] enforcement of amendments to a New York state regulation [NYC Health Code 81.53, PDF] prohibiting the sale or provision of "sugary" beverages in large cups or containers by food service establishments. In October groups representing restaurants, beverage makers and movie theaters challenged the link between regulation-defined "sugary" drinks and obesity, and asserted that "food service establishments" were arbitrarily defined such that a New York City resident could purchase a large sugary beverage from one server after denial from another next door. Judge Milton Tingling agreed and found Monday that New York's Department of Health and Mental Hygiene (NYDOH) [official website] impermissibly trespassed into legislative jurisdiction and overstepped its chartered authority by promulgating a rule that "limits or bans a legal item under the guise of 'controlling chronic disease.'" In addition, the court found that the definitions of beverage types and service establishments would lead to "arbitrary and capricious consequences" and thus permanently enjoined enforcement. The NYDOH and New York City Mayor Michael Bloomberg [official website] have expressed intent [press release] to appeal the decision to the New York Court of Appeals:
We have a responsibility as human beings to do something, to save each other, to save the lives of ourselves, our families, our friends, and all of the rest of the people that live on God's planet. And so while other people will wring their hands over the problem of sugary drinks, in New York City, we're doing something about it.Bloomberg said that he remained confident that the regulation will be upheld on appeal.
The NYDOH and the Board of Health approved Bloomberg's plan to promulgate the amended regulation in September, pursuant to which any establishment receiving a New York Health Department letter grade would be subject to a USD $200 fine for the sale of any sugary beverage in a container over 16 ounces. The NYDOH cited statistics connecting growing obesity and disease rates among NYC adults and children to increased portion sizes and the psychology of "thirst." Litigation over food health and safety has arisen in the past. In February 2009 the US Court of Appeals for the Second Circuit upheld [JURIST report] a New York City law that requires chain restaurants to post caloric content information on their menus and menu boards in an effort to address obesity rates. In August 2005 California Attorney General Bill Lockyer sought a court order requiring warning labels on foods [JURIST report] that contain acrylamide, a chemical found in potato chips and french fries that the state believes may cause cancer. In February 2005, McDonald's agreed to pay [JURIST report] USD $8.5 million to settle a lawsuit over unhealthy trans fats in cooking oils used to make french fries and other foods.