Bootleggers can stand down: Manhattan Supreme Court Justice Milton Tingling took the fizz out of Mayor Bloomberg’s prohibition on sweetened beverages in containers larger than 16 ounces yesterday — just hours before the ban was to kick in.
And here we had visions of a new black market, served by canvas-covered convoys crossing the Mexican border smuggling caseloads of two-liter Coke. Or perhaps the terror group Hezbollah would capitalize on it, possibly via Indian reservations, as it’s been accused of doing with high-taxed smokes.
OK, maybe a black market for large sodas might not have been necessary in New York. That’s because, as Tingling noted, the ban itself created enough loopholes to defeat its own purpose. Which is partly why he struck it down.
Tingling rightly called the Health Department rule “fraught with arbitrary and capricious consequences.” He said it would have created “an administrative Leviathan” and would have been enforced unevenly, “even within a particular city block.”
No kidding: The “ban” would have applied to “some but not all food establishments,” allowed unlimited refills and exempted some drinks with more calories than those that became outlawed.
With all these contradictions, the only purpose such a ban would serve would be to inconvenience New Yorkers, make sugared soda more expensive and create a new revenue stream for the city from fines on food establishments.
Tingling also blasted Mayor Mike’s attempt to give the Health Department “limitless authority” — which meant bypassing the legislative branch and violating the separation-of-powers principle. Indeed, he said it would “eviscerate” that legislative practice — a consequence perhaps “more troubling than sugar sweetened beverages.”
Fact is, Bloomberg’s attempt to dictate diets never made much sense. Even worse is that it lacked the consent of the governed: New Yorkers resented it, and the City Council refused to OK it.
So we raise a 32 oz. Dr. Pepper to Judge Tingling — and hope that His Honor’s ruling bodes the same outcome for the other undemocratic bans pushed by Mayor Mike.