New York City’s ban on large soda has drawn the ire of a number of businesses throughout the city, where the beverage industry has filed suit to prevent it from going into effect as planned next March.
The Soda Industry, in conjunction with 11 other organizations, is seeking to stop the measure that would ban businesses from selling sugar-laden beverages larger than 16 ounces.
Interestingly, the industry is challenging the measure not so much on substance, but on procedure. In a 61-page complaint filed in mid-October, the plaintiffs outright say that the case, “is not about obesity in New York or the motives of the (New York City) Board of health in adopting the rule being challenged.” Rather, the plaintiffs allege that the New York City Board of Health, which passed the measure, does not in fact have the legal authority to do so. Instead, they argue, such legislation would have to passed by City Council, as have similar measures, such as requiring chain restaurants in the city to post calorie labels and banning smoking in all restaurants.
The plaintiffs say that the ban serves to usurp the role of the council, which violates the core principals of a democratic government.
Further, they allege that the ban unfairly harms small businesses and burdens consumers. Namely, they point to the hypocrisy of the measure when there are exceptions made for drinks favored by affluent customers, such as high-calorie coffee beverages, wine and alcohol-based drinks.
But the issue is more about the way in which the ban was enacted. The Board of Health, as the plaintiffs noted, is appointed almost entirely by the mayor, who proposed this measure in the first place. The board moved to act upon the measure, even as 90,000 people had signed a written petition to stop it.
The measure passed in mid-September, and imposes a $200 fine for each violation.
The city counters that the board does, in fact, have the authority to “create regulation that promotes healthier living.” In fact, the city contends that is the whole point of the board, which holds that obesity is an epidemic that kills some 6,000 New Yorkers annually and negatively impacts the health of thousands more, including children. Mayor Michael Bloomberg says the city spends approximately $4 billion annually on medical care for people whose primary problem is obesity. In fact, one in eight New Yorkers reportedly suffers from diabetes, which is most often directly attributed to obesity.
But again, the plaintiffs say it’s not about all that.
The plaintiffs note that it’s clear the reason why the measure went through the board, rather than council, is because it would likely not pass in the latter. It was noted that even some council members had been instrumental in circulating that petition to fight the ban.
The ban would affect not only restaurants, but also food carts and any other establishment that gets letter grades for its service of food. However, grocery stores would be exempt.
Some of the most vocal critics have been large corporations, such as Coca-Cola and McDonald’s, who say the measure is “misguided.”
The Law Offices of Ira S. Newman provides business litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.
Bloomberg’s big soda battle heads to court, Oct. 15, 2012, By Sarah Kliff, The Washington Post
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