Soda ban overturned, but the battle is far from over

A New York judge took the fizz out of New York City's attempt to ban large sugary beverages at restaurants, handing the soft drink and fast food industries a major victory and sending a pointed message to the mayor and the city's board of health about regulatory overreach.

But the rejection of New York's big soda ban is unlikely to quell the calls for food and beverage companies to address the negative health effects of their offerings. From the successful campaign against trans fats to San Francisco's ban on toys in McDonald's Happy Meals to First Lady Michelle Obama's campaign against childhood obesity, makers of junk foods face a widening public-relations battle.

After New York proposed its ground-breaking ban last year, the mayor of Cambridge, Mass., weighed in on the desirability of doing the same in her city. New York's ban – which would have fined restaurants serving sugary beverages in cups bigger than 16 ounces – would have been a highly visible symbol of progress for that movement.

"This ban sends a signal to large soda manufacturers and fast food chains that 'anything does not go,' " wrote Nancy Neiman Auerbach, a professor who studies food politics at Scripps College in Los Angeles, in an e-mail before the court's verdict. "That is, there are and should be limits to the externalizing of costs that get borne by the public in order to reduce costs and increase profitability of large producers."

Instead, a group led by the American Beverage Association sued the city, and New York State Supreme Court Justice Milton Tingling blocked the ban. The court's rejection cheered the rule's opponents, including soft-drink manufacturers, the National Restaurant Association, and many New York residents concerned about the spread of government regulation into areas once the preserve of individual choice.

"The court’s decision upholds a principle that most of us already believe in – freedom of choice. Individuals are the ones with the power to choose what foods and beverages are right for them, and no one-size-fits-all policy can or should infringe on that decision, no matter how well-intentioned it may be," the American Beverage Association, which represents the nonalcoholic beverage industry, said in a statement. "Health cannot be legislated, mandated or decreed – it must be learned and practiced by individuals."

Opponents of the ban also took issue with the potential impact on small businesses, which would have to incur the costs of ordering smaller cups or changing their menus, for example. The NAACP and Hispanic Federation supported the ABA lawsuit, saying in court documents that, "this sweeping regulation will no doubt burden and disproportionally impact minority-owned businesses at a time when these businesses can least afford it."

"It seems to me very clear that the big losers here are not the small businesses, most of which do not specialize in mega-drinks, which tend to be the purview of fast food chains," Ms. Aurbach argues. "Arguments have tended to focus on how these laws will unfairly impact the little guy. This tends to be an effective way to gain public sympathy. This is not unlike the claim that farm subsidies mostly go to support small family farms who would go bankrupt if the Farm Bill were significantly modified. Nothing could be further from the truth."

Judge Tingling didn't take issue with the idea of a ban on sugary drinks, only the way it was carried out. He blasted the city for claiming that its Board of Health didn't need the city council's approval before regulating the size of sweetened beverages. The ban, known as the Portion Cap Rule, "would not only violate the separation of powers doctrine, it would eviscerate it," he wrote.

 The judge also called the rule "arbitrary and capricious," because it didn't apply to all establishments in the city or all high-calorie sweetened drinks.  Indeed, the loopholes were legion: While restaurants would be regulated because they fall under the purview of the Health Department,  most convenience stores (including 7-Eleven and its "Big Gulp" drinks) would not – they are regulated by the state.

Pizza places and other restaurants would have been banned from selling 2-liter bottles of soda, but supermarkets would have not been restricted. Drinks that are more than 50 percent dairy, like a Frappuccino or a milk shake, would have been exempt from the ban, even if they contained more calories than the sodas. The ban also did nothing about refills and allowed customers at a Starbucks or Dunkin' Donuts to load large drinks with as much sugar as they wanted – as long as they did it themselves.

For example: Only a very small percentage of Starbucks drinks would have been affected, said Linda Mills, a Starbucks spokeswoman. "So many of our beverages are already customizable, and we have so many milk-based beverages that already fall outside the ban."

New York's mayor, Michael Bloomberg, tried to convince the state to ban the big drinks in convenience stores, too, but failed. Resolutions within the city council to tax big sugary beverages, place warning labels on them, and prohibit their purchase by food stamp recipients also failed, which might explain his push for the health board to act unilaterally.

Despite his defeat, Mayor Bloomberg vowed to continue the fight.

""Being the first to do something is never easy," he told reporters after Monday's verdict. "But we strongly believe that, in the end, the courts will recognize the Board of Health's authority to regulate the sale of beverages that have virtually no nutritional value, and which – consumed in large quantities – are leading to disease and death for thousands of people every year."