Coalition Challenges NYC Size Limits on Sugar-Sweetened Beverages
A coalition of industry and union interests has filed a petition seeking to
enjoin or invalidate the New York City (NYC) Department of Health prohibition
on the sale of certain sugar-sweetened beverages in servings exceeding 16
ounces from certain types of business establishments. N.Y. Statewide Coal. of
Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No.
653584/2012 (N.Y. Sup. Ct., N.Y. Cty., filed October 12, 2012). The coalition
contends that the Board of Health acted beyond its powers in adopting the
prohibition and that it is arbitrary and capricious in its design and application.
Members of the coalition include trade associations for Korean-American
grocers, restaurants, beverage makers, and theater owners, as well as the
Hispanic Chamber of Commerce and a soft drink and brewery workers union
local. According to the petition, the rule does not apply to beverages higher
in calories than soft drinks, including alcohol-based drinks, wines, high-calorie
coffee drinks, milkshakes, fruit smoothies, and 100-percent fruit juices. Nor
does it apply to every type of vendor; it apparently “applies to restaurants,
delis, fast-food franchises, movie theaters, stadiums and street carts, but not
to grocery stores, convenience stores, 7-Elevens, corner markets, gas stations
and other similar businesses—literally thousands of stores—that sell the same
beverage products.”
The prohibition also apparently allows “unlimited free refills, and allows
customers to add as much sugar as they want to any beverage after it is
purchased.” As to such “loopholes,” the petition states, “When these loopholes
are contrasted with the provision in the Ban that forbids establishments with
self-serve fountains from offering cups larger than 16 ounces even when used
for diet sodas, zero-calorie beverages, and water, it is not possible to say DOH
is doing anything but making political, economic, and pure policy judgments
unrelated to any technical or scientific expertise.”
