Lawsuit takes aim at New York's 16-oz beverage rule

by Jeff Gelski
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NEW YORK — A group of business and trade associations on Oct. 12 filed a lawsuit that challenges the New York City Board of Health’s authority to issue a rule to prohibit certain businesses from selling sugar-sweetened beverages larger than 16 oz.

The American Beverage Association, Washington, and the National Restaurant Association, Washington, were in the plaintiffs group as well as the Teamsters Local 812, the Korean-American Grocers Association of New York, the National Association of Theatre Owners of New York State and the New York State Coalition of Hispanic Chambers of Commerce.

According to the board of health rule, which passed on Sept. 13, 2012, many food establishments starting March 12, 2013, no longer will be allowed to sell sugar-sweetened beverages in containers larger than 16 oz. The establishments include restaurants, food carts, delis, movie theater concessions, stadiums and arenas. The rule will not affect drinks that contain at least 50% milk, or fruit or vegetable juices that contain no added sugar.

The lawsuit, filed in New York state court, contends that under New York state law the power to pass legislation is reserved for the city council.

“We can’t allow decisions like this — decisions that put real jobs at risk — to be made by skirting the process,” said Ed Weber, president of the Teamsters Local 812.

The lawsuit points out grocery stores and convenience stores will remain unregulated.

“Laden with exceptions, exclusions and loopholes, the ban draws lines and picks among businesses winners and losers based transparently on economic, political and social concerns ...,” the lawsuit said.
The lawsuit points out the rule imposes no limits on alcoholic beverages or certain milk or soy-based milk substitutes. Restaurants or bars would be forbidden from serving a 20-oz Coke, but they would be allowed to serve a 20-oz rum and Coke. Diners would be permitted to sell 800-calorie milk shakes, but they would be forbidden from serving 240-calorie, 20-oz soft drinks.

“This arbitrary ban creates an uneven playing field, seriously harming thousands of small businesses in the city while leaving others exempt,” said Caroline Starke, a spokeswoman for the plaintiffs.

Michael Bloomberg, mayor of New York City, spoke in favor of the rule the day it passed.

“This is the biggest step a city has taken to curb obesity,” he said. “Simply by proposing limits on sugary drinks, New York City pushed the issue of obesity, and the impact of sugary beverages, onto the national stage. The board of health’s passing this proposal means that New Yorkers will soon consume fewer junk calories and eventually begin turning the tide of the obesity epidemic that is destroying the health of far too many of our citizens.”

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