NYC soda ban in court: Judges question reasoning behind 16-ounce limit

NEW YORKNew York City's ban of sodas larger than 16 ounces continues to play out in courts.

A state appeals court panel on Tuesday had few sweet words for Mayor Michael Bloomberg's proposed health regulation that would fight the city's growing diabetes and obesity rates by setting a size limit on sugary beverages sold at New York eateries including restaurants, fast food chains, delis, movie theaters and sport venues.

The four justices peppered a city lawyer with tough questions during a Manhattan court session aimed at determining whether health officials exceeded their authority in placing a 16-ounce limit on most sweetened beverages at city-licensed eateries.

The regulation won't apply supermarkets or most convenience stores. It was struck down in March by a lower-court judge, who found that the rules had too many loopholes that would undermine the health benefits while arbitrarily applying to some businesses but not others. For example, milk, or alcohol-based beverages are excluded from the size limits despite their sugar content. The city appealed.

During oral arguments in the case Tuesday, the judges repeatedly challenged city attorney Fay Ng to defend the rule's scientific and legal underpinnings.

Justice David Friedman said the city appeared to be asking for unprecedented authority to regulate all sorts of portion sizes, including "the number of doughnuts a person could eat, the number of scoops of ice cream" and number of servings of fried chicken.

Several times, Justice Dianne Renwick questioned whether the 16-ounce size limit was scientifically arbitrary, given that it is based on liquid volume rather than a measure of how much sugar is actually in a beverage. The limit, she noted, meant that some drinks with high amounts of sugar would be allowed, while others with less sweetener would be banned.

After the court session, City Health Commissioner Thomas Farley said that he remained confident the regulation will ultimately be upheld.

New York City needs the rule to address a growing health crisis, he said. The Health Department released a report Monday saying that diabetes killed an all-time high of 5,695 city residents in 2011, or about one death every 90 minutes. Around 650,000 adult New Yorkers are now living with diabetes, an increase of 44 percent since 2002.

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CBS New York reported that the city's diabetes death rate now amounts to 67 fatalities per 100,000 people, compared to the national rate of just over 73 diabetes-related deaths per 100,000 people.

"We're really experiencing an epidemic of diabetes and that's being driven by our epidemic of obesity," Farley told 1010 WINS on Monday. "Obesity rates continue to rise and diabetes is very strongly associated with obesity."

A lawyer for the American Beverage Association and a coalition of other groups that challenged the regulation acknowledged that too much sugar can be unhealthy, but he told the court the regulation was "a breathtaking example of agency overreach."

"For the first time, this agency is telling the public how much of a safe and lawful beverage it can drink," attorney Richard Bress said. "This is the government coercing lifestyle decisions."

He said the city's proposal seemed to be based more on politics and consumer economics than pure science. He noted that the rules, which contain an exception for dairy products, would prohibit restaurants from serving more than 16 ounces of cranberry or orange juice in a glass, while setting no limits on the size of a milkshake.

"That makes no sense at all as a matter of nutrition," he said.

The court didn't indicate when it might rule.