In March, Justice Milton Tingling’s ruling ended the city’s plan to cap the size of sugary soft drinks sold in restaurants, movie theaters, stadiums, and arenas at 16 ounces per cup. On July 30, a unanimous panel of the New York State Supreme Court’s Appellate Division, First Department, upheld the ruling, which had found the city’s Board of Health did not act within the bounds of its authority when the plan was originally approved..
Last September the city’s Board of Head approved Mayor Michael Bloomberg’s plan. The plan was castigated as an “unprecedented interference” with consumer choice by groups representing beverage makers, restaurants, and theaters which, a month later, sued to block the plan.
Justice Dianne T. Renwick wrote in the appeals court ruling: “The Board of health overstepped the boundaries of its lawfully delegated authority when it promulgated the portion cap rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers.”
The city disagrees with the panel’s reasoning. Corporation counsel Michael Cardozo said in a statement that the city will appeal to the state’s highest appeals court in Albany.