NYC Board of Health Smacked with Lawsuit Over “Bloomberg Ban”

As expected, New York City’s battle over the so-called Bloomberg ban is now heading to the courtroom. Last Friday, a number of beverage and restaurant industry groups, including the American Beverage Association and the National Restaurant Association, filed a lawsuit in New York State Supreme Court in Manhattan aiming to overturn the city’s recently created restrictions on the sale of large, sugary drinks, which are scheduled to begin in March 2013.

The plaintiffs in the lawsuit claim that the city’s Board of Health, which was appointed by New York City Mayor Michael Bloomberg, did not have the authority to pass a measure that will prohibit the on-premise sale of drinks with more than 25 calories per 8 oz. serving in containers larger than 16 oz. The Board of Health claims that highly sugared drinks are a leading cause of obesity, and that the measure is intended to reduce rising rates of sugar-related illnesses in the city, one in which more than half of its adult population is overweight or obese. Nevertheless, the lawsuit contends that the New York’s City Council is the only body that could approve regulations on drink sizes.

“This case is not about obesity in New York City,” the plaintiffs said in the lawsuit. “This case is about the Board of Health, appointed by the mayor, bypassing the proper legislative process for governing the city.”

In a statement following the filing of the lawsuit, Caroline Starke, a spokeswoman for the plaintiffs, said that, “Despite strong and growing opposition from New Yorkers, the proposal was passed by sidestepping the city’s elected legislators. [The] board has the authority to enforce policy, not the authority to enact it. That power is reserved for the City Council.”

While the lawsuit asserts that the ban violates a section of the New York Civil Laws and Rules, Marc La Vorgna, Mayor Bloomberg’s chief spokesman, called plaintiffs’ claims “baseless.”

“The Board of Health absolutely has the authority to regulate matters affecting health, and the obesity crisis killing nearly 6,000 New Yorkers a year — and impacting the lives of thousands more — unquestionably falls under its purview,” La Vorgna said in a statement. “This predictable, yet baseless, lawsuit fortunately will help put an even greater spotlight on the obesity epidemic, the only preventable public health issue getting worse in America.”

The mayor’s office may have reason to feel confident. Following Mayor Bloomberg’s initial proposal for a sugary drink ban in May, City Council Speaker Christine Quinn called upon lawyers for the New York City Council to investigate whether the board had the authority to approve such a measure. And while Quinn, a likely 2013 New York City mayoral candidate, has stated that she disagrees with board’s decision, she said that council lawyers confirmed that the Board of Health does indeed have the power to approve a drink ban.