Now that New York is getting used to soda as usual — which is to say, big — the war on sugary drinks moves to appeals court, where a potentially long legal battle will play out... and where Mayor Michael Bloomberg's chance to revive his ban stands an uneven chance.
On Tuesday, the city formally filed its appeal against New York Supreme Court judge Milton Tingling Jr.'s surprise last-minute decision that "enjoined and permanently restrained" the Bloomberg administration and his Board of Health officials from implementing its regulations on what it says are oversized beverages contributing to the city's obesity problem. The appeal papers, which you can read over at AM New York if you're so inclined, are extremely dry, but the issue is certainly sticky. "We are moving forward immediately with our appeal," Michael Cardozo, the city's attorney, told CBS New York. "We believe the judge was wrong in rejecting this important public health initiative. We also feel he took an unduly narrow view of the Board of Health’s powers."
On Monday, Judge Tingling ruled the ban was "fraught with arbitrary and capricious consequences," less than 12 hours before it was set to take effect. Central to the judge's decision was not so much the health effects as the near impossibility of regulating something so prevalent in a city so big — and that the ban only affected certain establishments serving sugary drinks. Under the proposed ban, you would still be able to buy Big Gulps from 7-Eleven, but not a jug of Pepsi with your deliver pizza. In his ruling, Tingling wrote the City's Board of Health, which is appointed by the mayor, did not have the authority to enact such regulations without the support of a City Council vote.
Bloomberg has already begun fighting the judge's decision from what — despite his stature, which the tabloids reminded him about on Tuesday morning — is a sizable soap box. "If it happens here, it will happen everywhere, and if it's stopped here, it's going to be a very big problem," Bloomberg said Tuesday, speaking at Lucky's Cafe, a New York restaurant voluntarily adopting his regulations. "An awful lot of people are dying. This is not a joke," he said, speaking indirectly to those tabloid writers.
The courts have Bloomberg's appeal now, and it could be a matter of weeks or months before the legal process starts up again. The mayor does have the option to expedite the process to get a ruling in a matter of weeks. The New York Times's Kate Taylor posits the idea that the appeal process could stretch past Bloomberg's time in office, which would jeopardize the ban's fate — Bloomberg's term ends after this year, and candidates in the big mayoral race to come may not have the flexibility to push on such a hot-button issue. The two Democratic candidates running for mayor have different opinions of the ban: Bill de Blasio, not always Bloomie's best friend, is for the ban; his handpicked successor, Christine Quinn, is against it.
Meanwhile, some legal experts seem to think the soda ban will end up dying on appeal, regardless of how the official process between Bloomberg's Board of Health and the court is supposed to play out politically. "Although I think the mayor has a good idea, I don't think he's going to prevail on appeal," Stephen Preziosi, a New York City lawyer specializing in civil and criminal cases, told Business Insider. "I think Judge Tingling got it right on the law." Preziosi offered no other expertise on the matter, just that the judge was correct because obesity isn't an "imminent" danger.
Indeed, Judge Tingling may have ruled against the ban on narrow enough grounds that the health cause may fail to the regulatory one. Maybe. The sealed soda fate of New Yorkers, at least for now, is something like this: Give us our extra large Pepsi, or give us death.