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Bloomberg loses the soda battle, not the war

Our view: Ruling against limits on big drinks may just be a temporary setback for NYC mayor's health initiative

3:31 PM EDT, March 12, 2013

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The beverage industry is claiming victory after a New York City judge on Monday overturned a ban on super-size sodas and sugary drinks Mayor Michael R. Bloomberg had championed as a way to combat obesity among residents. But the battle is hardly over. Mr. Bloomberg, whose campaign against sales of such drinks in containers larger than 16 ounces became one of the signature public health initiatives of his administration, has garnered worldwide attention for his efforts and in the process amplified the conversation about the link between sweetened drinks and obesity that likely will go on long after he leaves office at the end of this year.

The judge in the case struck down the city's limits on large, sugary drinks as "arbitrary and capricious" because they applied to some stores and eateries but not others. For example, most restaurants, theaters and food trucks would have been covered by the ban, while certain large retailers and chain-store franchises like 7-Eleven remained exempt. The beverage industry claimed the law would create a confusing patchwork of conflicting rules for store owners doing similar types of business that would make enforcement difficult or impossible.

That's true to an extent, given the way the ban was created. Under New York's regulatory system, restaurants, theaters and food trucks come under the authority of the city health department, while regulations on large retailers and franchises would require approval of the City Council. Since the council didn't act, the judge ruled, there's no way the ban could be applied fairly.

The mayor has not yet said whether he plans to appeal the decision or whether he will try to get the City Council on board; the latter could be difficult, given his lame-duck status. He has, however, insisted that the health department has "the legal authority and responsibility" to address the city's obesity epidemic and that limiting the sale of high-calorie sodas and beverages is vital to that effort. Earlier in his tenure, Mr. Bloomberg overcame similar opposition to one of his health initiatives when he succeeded in requiring fast food restaurants to include calorie counts on their menus.

In any case, it appears the mayor's high-profile involvement has captured the attention of officials across the country who are equally concerned about the impact of sugary drinks on public health. Several states, including Massachusetts, Hawaii and Nebraska, already are considering higher taxes or other deterrents on sales of sugary drinks, and cities such as Los Angeles and Cambridge, Mass., have debated limiting drink sizes as well. Baltimore's bottle tax, though not directly couched as a public health measure, exempts healthier drinks like milk.

Mr. Bloomberg clearly wants the link between obesity and sweetened beverages to become part of his legacy as mayor, and this is an issue that is increasingly likely to go his way as time goes on. The beverage industry drew a line in the sand over limits in New York because of the city's size and influence over the rest of the country. But its apparent victory in the courts may signal the end of Round 1 in a fight that's just beginning.

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