Overturning Bloomberg’s Big Beverage Ban, Appeals Court Notes That Mountain Dew Is Not Malaria

Jacob Sullum
Reason Magazine

Today a state appeals court panel unanimously ruled that the New York Board of Health exceeded its regulatory authority when it enacted Mayor Michael Bloomberg’s big beverage ban. The decision upholds a March 11 ruling by a state judge, Martin Tingling, who blocked the widely derided soda serving ceiling before it took effect after finding that it violated the separation of powers. At the time, Bloomberg declared Tingling’s decision “totally in error” and expressed confidence that he would prevail on appeal.

In agreeing with Tingling that the Bloomberg-appointed board of health did not have the authority to regulate servings of sugar-sweetened beverages, the appeals court emphasized that such drinks, unlike communicable diseases, tainted food, and unsanitary water, are not inherently hazardous. “Although the legislature intended to rely on the Board of Health’s expertise in identifying and determining how to regulate inherently harmful matters affecting the health of the City,” the court said, it did not empower the board to enforce moderation in the consumption of products that are dangerous only when consumed to excess. “Since soda consumption cannot be classified as a health hazard per se,” the court said, “the Board of Health’s action in curtailing its consumption was not the kind of interstitial rule making intended by the legislature.”…


The article continues, with video, at Reason.com



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