Appeals Court Says Nycs Big Soda Ban Unconstitutional

07.31.13 | Bob Price

A mid-level state appeals court ruled Tuesday that the city's Board of Health exceeded its legal authority when it voted last year to put a 16-ounce size limit on high-calorie soft drinks served in restaurants, theaters, stadiums, sidewalk food carts and many other places.

In a unanimous opinion, a four-judge panel of the state Supreme Court Appellate Division said that while the board has the power to ban "inherently harmful" foodstuffs from being served to the public, sweetened beverages don't fall into that category. Soda consumption is not necessarily harmful when done in moderation, the court wrote, and therefore "cannot be classified as a health hazard per se."

The panel didn't address whether the size limit would have infringed on personal liberties, but said that in adopting it, the health board improperly assumed broad lawmaking powers given only to legislative bodies, like the City Council.

Mayor Michael Bloomberg, the driving force behind the regulation, promised a quick appeal.