A four-person appeals panel bombarded city lawyers today with questions about loopholes in Mayor Bloomberg’s controversial plan to ban large sugary drinks.
“Why the limits on some [drinks] and not others,” asked Justice Diane Renwick.
The city argued at the Appellate Division today that the higher court should reinstate the mayor’s policy that was struck down by Manhattan Supreme Court Judge Milton Tingling in March.
Tingling deemed the ban “arbitrary and capricious” because it would only target certain stores like bodegas for selling certain kinds of beverages like a 20-ounce Sprite. But other drinks, like the Big Gulps from 7-Eleven are excluded.
The panel was befuddled by the distinctions.
“How about pomegranate juice and blueberry juice?” Judge Rosalyn Richter asked.
“What about sugar-infused energy drinks?” she wondered.
Richard Bress, the attorney arguing for the soda ban opponents took up the judges’ concerns about the logic of a ban that allows regular milk and soy substitutes but not rice or almond milk.
“The lines they’ve drawn every which way are really not rationally based,” Bress said.
The panel’s questions were similar to those raised by Judge Tingling when he killed the policy this spring.
But Fay Ng, the city’s attorney, said the 16-ounce rule was scientific and an attempt by the Board of Health to reduce obesity rates, which have skyrocketed in recent years.
“The portions have exploded to such an extent that the default portions are much larger than they should be,” Ng told the judges. “Studies have shown that people eat or drink what’s in front of them.”
The judicial panel is expected to issue a decision before the summer recess at the end of this month or in the fall. If the city loses this second round it has one more chance to petition the state’s highest court, the Court of Appeals.