According to a 61-page filing lodged with the State Supreme Court in Manhattan on Friday (October 12), that authority sits with the New York City Council.
“This case is not about obesity in New York City... This case is about the Board of Health, appointed by the Mayor, bypassing the proper legislative process for governing the City.
“The Board of Health’s decision... to ban certain sizes of sweetened beverages in certain outlets, imposed by executive fiat, usurps the role of the City Council, violating core principles of democratic government.”
Uneven playing field
The plaintiffs also attack the proposal as “arbitrary and capricious” as drinks banned in a restaurant can be served in a grocery store next door.
“Delis and hotdog stands are barred from selling a 20-ounce lemonade, but the 7-Eleven a few feet away remains free to sell Big Gulps... By frequenting other, non-covered businesses consumers will still be able to purchase the beverages they want in the size containers they want.
"The Board therefore is merely choosing winners and losers among businesses, distorting the beverage market, and placing every covered business (many of which are small, family-owned establishments) at a competitive disadvantage with every 7-Eleven, grocery store, and gas station on their block."
800-calorie milkshakes are permitted, 240 calorie sodas are not...
Meanwhile, as the ban excludes most dairy-based beverages, “Diners will be permitted to sell large chocolate milkshakes (about 800 calories each), but will be fined if they sell a 20-ounce cola (only about 240 calories)”, noted the plaintiffs.
“The ban targets non-diet soft drinks, sweetened teas, sweetened black coffee, hot chocolate, energy drinks, sports drinks, and sweetened juices, but exempts numerous beverages that contain equal or even more calories and sugar.”
Bloomberg: Health Board absolutely has the authority to regulate matters affecting health
However, Mayor Bloomberg’s spokesman Marc La Vorgna told the New York Times that the Board of Health “absolutely has the authority to regulate matters affecting health”.
He said: “The obesity crisis killing nearly 6,000 New Yorkers a year — and impacting the lives of thousands more — unquestionably falls under its purview.”
Professionally manufactured outrage
While the soft drinks industry has tried to turn the debate into one about curtailing Americans’ freedom of choice, supporters of Bloomberg's ban such as the Center for Science in the Public Interest (CSPI) have dismissed the industry’s “professionally manufactured outrage” and urged other states to follow Bloomberg’s lead.
CSPI executive director Michael Jacobson predicted that few consumers “are really going to miss quart-sized soda servings despite the professionally manufactured outrage from soda-industry front groups”.
Meanwhile, the scale of the public health crisis facing the healthcare system is such that bold action is needed from city and state health departments to deal with it, he claimed.
“To make a dent in expensive and debilitating conditions such as obesity, diabetes, heart disease, and other health problems, it makes perfect sense to act to discourage and reduce soda consumption.”
How much energy in the American diet comes from soft drinks?
The CSPI, which has just created a hard-hitting video called The Unhappy Truth about Soda, claims that "each additional sugary drink consumed per day increases the likelihood of a child becoming obese by about 60%", and that "drinking one or two sugary drinks per day increases your risk for type 2 diabetes by 25%".
According to an analysis of 2005-6 National Health and Nutrition Examination Survey (NHANES) data conducted by the National Cancer Institute, soda, sports drinks, sweetened waters and energy drinks account for 5.5% of calories consumed by Americans.
Adam Drewnowski PhD, director of the Center for Public Health Nutrition at the University of Washington, Seattle, told FoodNavigator-USA: "Now if [the definition of]'sugary drinks' also includes flavored milk, fruit drinks and juices - then it will be a bit more than 5.5%. These categories were in the 'other' section contributing individually less than 2%."
What is Bloomberg proposing?
The proposal - effective from March 2013 - bans sales of sugary beverages in containers larger than 16oz by any outlet that receives letter grades for food service, including movie theaters, fast food chains, mobile food carts and delis. It will not apply to grocery stores.
The ban - which will exclude most dairy-based drinks, diet sodas, alcoholic drinks and 100% juices - targets beverages "sweetened with sugar or another caloric sweetener that contain more than 25 calories per 8 fluid ounces and less than 51% milk or milk substitute by volume as an ingredient”.
The lead counsel on the suit is Latham & Watkins.
The plaintiffs group consists of New York City businesses and workers represented by city, state and national associations, including the Teamsters Local 812, Korean-American Grocers Association of New York, National Association of Theatre Owners of New York State, National Restaurant Association, New York State Coalition of Hispanic Chambers of Commerce and the American Beverage Association.