New York "Big Gulp" Ban Bites It For Good

New York "Big Gulp" Ban Bites It For Good

 The New York Court of Appeals has ruled in the case of Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health & Mental Hygiene to strike down, permanently, New York City's attempted ban on sugar-based beverages in containers larger than 16 ounces [an enhanced version of this opinion is available to lexis.com subscribers]. As we suggested when the case was just before the Supreme Court (confusingly, the trial court in New York), the case really had to do with the powers of the New York Health Department, an administrative agency beholden basically to the mayor, and not to any question of the merits of its rule. 

Yet, the New York Times, as seems to be required in all reporting of legal decisions in mainstream publications, overstates the effect of the decision:

The Court of Appeals ruling will most likely be seen as a significant defeat for public health advocates who have urged state and local governments to discourage the consumption of high-calorie beverages, saying the drinks are prime drivers of a nationwide epidemic of obesity.

Not really.  It should be seen as a proper corrective to an admininstrative agency that overstepped its bounds.  The New York City Council and the New York Legislature, the Court of Appeals made clear as had the lower courts, remain perfectly empowered to enact laws to accomplish exactly what the Health Department was not empowered to do.  Whether they do it or not, of course, is up to them. 

The court decided the case 4-2, with one concurrence and one judge recused (The Times of course called the dissent "blistering", as though they are dissents that are not).  And at least one media outlet copied my prior headline (I have no idea if it was original then, of course).

As I prepare for another trip to New York, I'm glad to know that the 24-hour McDonald's up the street from my hotel will continue to serve Diet Dr Pepper in the larger size, so I don't have to walk to the 7-11 (which wasn't covered by the regulation in the first place), which is several blocks further.

 Read additional articles at the Food Liability Law Blog

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