Appeals court closes door on Bloomberg’s ‘soda ban’

In the Big Apple, the Big Gulp is now — without question — legally good to go.

The New York State Court of Appeals upheld a decision Thursday striking down former Mayor Michael Bloomberg’s notorious “soda ban” ruling, saying that the policy was beyond the scope of the city Board of Health’s regulatory powers.

The board “engaged in lawmaking and thus infringed upon the legislative jurisdiction of the City Council of New York,” Judge Eugene F. Pigott Jr. wrote for the court.

On September 13, 2012, Mr. Bloomberg’s city government passed what is officially called the “Sugary Drinks Portion Cap Rule” amid criticism from New Yorkers and the beverage industry — and significant mockery from late-night comics. It sought to prohibit food service establishments from selling sugary drinks in sizes of more than 16 fluid ounces. The rule did not apply to supermarkets or convenience stores.

Mr. Bloomberg heralded it at the time as “the biggest step a city has taken to curb obesity,” but it was never implemented after being declared invalid by two lower courts.

With the soda ban’s future officially decided by a 4-2 vote from New York’s highest court, the winners joined together for Big Gulps, and the losers lamented what they said was a major setback for the anti-obesity public health campaign.

In a statement, Mayor Bill de Blasio, who supported the cap rule, said he was “extremely disappointed” with the court’s ruling.

“We cannot turn our backs on the high rates of obesity and diabetes that adversely impact the lives of so many of our residents,” said the Democratic mayor. “While we are still examining the court’s decision, it is our responsibility to address the causes of this epidemic, and the city is actively reviewing all of its options to protect the health and well-being of our communities.”

While Judge Sheila Abdus-Salaam said “no one should read today’s decision too broadly,” calling it a “separation of powers” issue, another judge did not agree. Judge Susan P. Read said the cap rule fit into the powers given to the Board of Health for the past 150 years.

“What petitioners have truly asked the courts to do is to strike down an unpopular regulation, not an illegal one,” she said.

Indeed, the cap rule was far from popular among citizens, with 63 percent of American adults opposed, according to a Rasmussen Reports survey in May.

Big-portion soda drinkers took to Twitter Thursday to rejoice in the ruling.

Christina Warren tweeted: “Bloomberg, I love you, but I’m going to celebrate the death of the large soda ban with a huge soda.”

Similarly, with a picture of a Big Gulp, William Tyson tweeted: “Dear Mayor Bloomberg, I enjoyed every drop! Signed, An American citizen!”

The other party praising the decision was the soda industry, which fought the rule since its passing in 2012. The American Beverage Association said in a statement that the ruling “would have created an uneven playing field for thousands of small businesses in the city and limited New Yorkers’ freedom of choice.”

But even with the ban gone, the industry could be facing some long-term questions with U.S. consumption of soda progressively declining over the past decade.

John Sicher, editor and publisher of Beverage Digest, which covers the nonalcoholic beverage industry, said soda has been on the decline since 1998. In 2013, the average American consumed 675 8-fluid-ounce servings of carbonated soft drinks a year, down from a high of 864 glasses in 1998.

The decline, he said, is due to a diversification of drinks with bottled water, ready-to-drink tea, sports and energy drinks; the increase in soft drink prices; and an increased concern about health, wellness and obesity.

The Coca-Cola Company has recently launched Coca-Cola Life, a cola sweetened with sugar and stevia leaf extract. With fewer calories and a natural flair, the cola was introduced in Argentina and Chile in 2013 and will be making an appearance in Great Britain this fall.

“We’re at the beginning of what’s going to be a deluge of new and reformulated products with different sweetener blends and different sweetener technology,” said Mr. Sicher.