Judge cans Bloomberg’s big-soda ban, saying it violates separation of powers

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The day before Mayor Michael Bloomberg's ban on big sugary drinks was scheduled to go into effect, New York Supreme Court Judge Milton Tingling ruled it an illegal usurpation of City Council powers.

 "The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine," wrote Tingling in a decision handed down today and viewable here. "The Rule would not only violate the separation of powers doctrine, it would eviscerate it."

Last year, the Bloomberg-controlled Board of Health approved a rule that would ban the serving of sugared sodas in portions larger than 16 ounces.

The rule would apply to all city-regulated food-service establishments, like restaurants and movie theaters, but not to state-regulated ones, like grocery stores.

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In a lawsuit filed in October, opponents of the ban, including the National Restaurant Association and the American Beverage Association, argued that the a portion cap required City Council approval.

The judge agreed.

Bloomberg had no immediate comment, but former comptroller Bill Thompson, who's running for mayor this year, just issued a statement hailing the decision.

“Today’s ruling unmasks Mayor Bloomberg’s misguided soda ban policy for what it is: a cosmetic solution to a complex problem," said Thompson. "To solve the serious health challenge of our city, we need leadership, not gimmicks. When I’m Mayor, I will focus on increasing education and awareness about physical fitness and nutrition; bring together small businesses, schools, and government in order to implement holistic programs that address the root of the problem; and work with healthcare professionals to advance policy built on helping families, not hurting small businesses."

Thompson is not the only mayoral candidate to argue that the ban is misguided.

Council Speaker Christine Quinn, the Democratic front-runner and a Bloomberg ally, has said the ban goes a bit too far on the "punitive" side of things.

Public Advocate Bill de Blasio, on the other hand, supports the big-soda ban and has called Bloomberg's public health initiatives "visionary."

The administration will appeal.

Statement from Michael A. Cardozo, Corporation Counsel, NYC Law Department: "We plan to appeal the decision as soon as possible, and we are confident the Board of Health’s decision will ultimately be upheld," said Michael Cardozo, the city's corporation counsel, in a statement emailed to reporters shortly after the decision was announced. "This measure is part of the City’s multi-pronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year, and we believe the Board of Health has the legal authority – and responsibility – to tackle its leading causes.”