Mayor Bloomberg during a press conference in support of a large portion soda ban at Lucky's Cafe in Manhattan.
An appeals court today dealt another blow to Mayor Michael Bloomberg's proposed soda ban, calling the controversial regulation "invalid" because it violates "the principle of separation of powers."
Writing for the Appellate Division, Justice Renwick also criticized Bloomberg and the Health Department for proposing a ban with giant loopholes, which would exclude colas and energy drinks but allow milkshakes and fruit juices. Similarly businesses like delis and restaurants were prevented from hawking sugary beverages but 7-Elevean could still sell its signature Big Gulp.
The judicial panel said those inconsistencies go “beyond health concerns, in that it manipulates choices to try to change consumer norms.”
In March, a lower court judge first rejected the ban that stropped city restaurants, delis and other businesses from selling large sugary drinks, just a day before it was scheduled to launch.
Manhattan Supreme Court Justice Milton Tingling slapped Bloomberg and his Board of Health for overstepping their bounds this spring.
Today the four-judge Appellate Division panel agreed.
"Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority," Justice Dianne Renwick wrote in the unanimous ruling.
The judges said legislature should decide the issue.
Mayor Bloomberg called the decision “a temporary setback,” in his crusade to reduce obesity in the Big Apple, adding that he planned to submit an appeal to the state’s highest court.
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