by Marion Nestle
Apr 29 2014

The Bloomberg soda cap rule: not over yet

Yesterday, Health Commissioner Mary Bassett announced that the National Alliance for Hispanic health and nine other New York City organizations had filed an amicus—“friend of the court”—brief in support of the ban on sales of sodas larger than 16 ounces (the “soda cap rule”).

The amicus brief filed today…is a reminder of what this rule is about: protecting the health of New Yorkers. Corporate lawsuits and well-financed marketing campaigns do not change the documented scientific fact that there is an obesity and diabetes epidemic in our city, with the epicenter in our poorest neighborhoods. We must protect New Yorkers from corporate practices that value profits at the expense of their customers’ health.

The Alliance issued its own statement.

“The beverage industry has pursued a strategy of legal obstruction and put profits over the health of its customers,” said Dr. Jane L. Delgado, President and CEO of the National Alliance for Hispanic Health, the nation’s leading science-based advocate for Hispanic health.

The amici brief concludes:

The problem that the Rule addresses – the impact of sugary drinks in contributing to obesity and other diet-related chronic disease – is an issue of importance and urgency  for millions of New Yorkers. The crisis calls for action – including the incremental action of reducing the portion sizes of sugary drinks in restaurants. For the one of every three children born in 2000 who will develop type 2 diabetes, and for the one of every two African-American and Hispanic girls who will get the disease, the question is not whether the Rule was justified but rather “What else is being done?”  It is for their sake that the Rule was adopted. It is for their sake that the Board concluded thaqt the inconvenience to the thirsty of having to order another soda was worth it.  It is for their sake that amici urge this Court to uphold the Rule.

The soda cap rule is on appeal to the State Supreme Court.  According to the Associated Press, a hearing is scheduled for June 4.

Congratulations to the new Commissioner for keeping this idea alive.


  • Casey

    Glad NYC got another Health Commissioner who’s a fighter!

  • Biggest MN Fan

    At all costs we MUST continue to force our arbitrary and capricious food regulations upon the poor ignorant masses. Judge Tingling may think he can distract us from our righteous food police actions but he will find out otherwise. Let;s be clear; it is our moral responsibility to save the common rabble from their own certain self-destruction out of ignorance and sloth.

  • Tess @ Tips on Life & Love

    While this is good, it seems that this is only half the battle. The other is making healthier drinks more affordable. Anyway, great post!

  • MAGottlieb

    I (and other public health lawyers concerned with sugary drinks) were pretty confident that the legal challenge to the rule was a PR stunt that, legally, was grasping at straws. I was surprised by the Judge Tingling’s strongly worded opinion and chalked it up to crankiness about the measure rather than sound legal reasoning. I was more surprised by the First Department’s opinion affirming Tingling on the separation of powers issue. To my mind, they were all wrong on the law. Of course, I’m not the judge, so that makes me wrong on the law. The rule’s potential impact on calories consumed has not really been an important issue in the challenge.

    Reviewing the briefs submitted by both sides in this final appeal, I am cautiously optimistic that the Court of Appeals will favorably resolve the separation of powers question and affirm the authority of the Health Board to make such a rule and tailor it as it did. The briefs can be reviewed here:

  • Cactus_Wren

    Oh, you poor thing. Well, I suppose it is a bit inconvenient to carry four sixteen-ounce soft-drink cups at once when you feel like consuming half a gallon of soda (a cup of sugar) at a serving. A little embarrassing, too, when people ask you who you’re buying all those sodas for and you have to answer, “Oh, they’re all for me!”

  • Cactus_Wren

    The healthiest drink is completely affordable. Turn on the tap and there it is.

  • Tess @ Tips on Life & Love

    Haha, so true.