by Marion Nestle
Jul 31 2013

Court turns down NYC 16-ounce soda cap; city will appeal

The  NY State Supreme Court, Appellate Division, has turned down the Bloomberg administration’s appeal (New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene).

The court’s decision in this case begins on page 22:

Like Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority. Accordingly, we declare the regulation to be invalid, as violative of the principle of separation of powers.

…we find particularly probative the regulation’s exemptions, which evince a compromise of social and economic concerns, as well as private interests. As indicated, the regulatory scheme is not an all encompassing regulation. It does not apply to all FSEs [food service establishments]. Nor does it apply to all sugary beverages. The Board of Health’s explanations for these exemptions do not convince us that the limitations are based solely on health-related concerns (pages 17, 18 of the decision).

OK.  So the city should have made the rule apply to all food service places and all sugary beverages.  Live and learn.

Mayor Bloomberg says the city will appeal:

Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12th, more than 2,000 New Yorkers have died from the effects of diabetes. Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes – both of which are disproportionately linked to sugary drink consumption. Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic.”

The American Beverage Association is pleased.  It’s headline: “Hey New York – Your Beverage Is Still Your Choice!”

We are pleased that the lower court’s decision was upheld.  With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City.

Even if the city loses the final appeal, the 16-ounce soda cap is the writing on the wall for soda companies.

Sales of full-sugar sodas have been falling for years and getting worse for both Coca-Cola and Pepsi.

Cutting down on the portion sizes of sugary drinks is still a really good idea.

Here’s what the news media say about it:

  • T J Huber

    Even though I wouldn’t touch a cup of soda with a ten foot pole, I can’t but bemoan the absolute impudence of these “so called” elected officials. Instead of putting their efforts into modifying the garbage served in schools, hospitals and prisons the effort goes into headline making and populist slogans. Shame on them and their compadres in the food industry!

  • BTW Orange juice has more sugar than soda and is more acid and so is worse for the teeth.

  • Library Spinster

    Elected officials in cities, towns, etc all over the country are “putting their efforts into modifying the garbage served in schools”. And the food industry fights every one of those efforts.

  • Michael Bulger


    Actually, orange juice appears to have less sugar than soda. Compare these two PepsiCo products:

    Pepsi –

    Orange Juice -

    The difference between cola and orange juice is even larger in the USDA’s nutrient database.

    And orange juice is source of vitamins, fiber (drink the pulp!), and other good stuff. Soda is not.

    Of course, the best option is to eat a whole orange..

  • Michelle

    If sales of full-sugar sodas have been falling for years WHY do we need people to force the ban on us? This is an issue for the free market of ideas: think tanks and public health advocates like Marion are and should be making the attempt to educate the public on food safety and nutrition, but the ultimate decisions about what to eat and drink should be left up to the individual.

  • Library Spinster

    The beverage industry makes the same argument. Unfortunately, their idea of education is that their products can be part of a healthy diet (of course, what apart from potassium cyanide, etc. couldn’t be?). Not mentioning that the portions should be small and an occasional treat.

    I had to smile at a beverage industry ad in a local paper. A full shopping cart and the woman pictured saying that it was her job to shop for her family. The cart was loaded with starches, multiple Imaginary Brand sodas and juice drinks, and one bag of unidentifiable green produce. Yeah, it’s your job, but it looks like you could use some help with that.

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  • It’s important to note that while soft drink sales have declined by 12.5% since 2000, obesity rates have continued to climb. The fact is all sugar-sweetened beverages are a relatively small part of our overall consumption – comprising just 7% of the calories in the average American’s diet ( The takeaway: no single food, beverage or ingredient uniquely causes obesity. All calories count and should be consumed in moderation, as explained in more depth in this New York Times article:

  • Michael Bulger

    Maureen, does that decline in sales of soft drinks account for any increase in energy drinks, sports drinks, or “vitamin” waters?

  • Michael Bulger

    According to the Robert Wood Johnson Foundation, sports drink consumption alone has increased dramatically. These sugary beverages sold by American Beverage Association members are similar in the amounts of “empty-calories” that they provide per serving.

    RWJF also notes how many ABA member advertisements that young people are exposed to…

    I’m sure “vitamin” waters and energy drinks are similarly responsible for a growing percentage of caloric intake across the United States.

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