A judge's last-minute overturning of New York's pioneering ban on large size sugary drinks has handed a defeat to health-minded mayor Michael Bloomberg and created confusion for restaurants that had already ordered smaller cups and changed their menus.
State Supreme Court Justice Milton Tingling said that the limit (around four-fifths of an imperial pint) on pop and other sweet drinks arbitrarily applies to only some sugary beverages and some places that sell them.
"The loopholes in this rule effectively defeat the stated purpose of this rule," Judge Tingling wrote in a 36-page ruling that examined the scope of power that should be afforded an administrative board for regulations. The ruling was seen as a victory for the beverage industry, restaurants and other business groups that called the rule unfair and wrong-headed.
In addition, the judge said the Bloomberg-appointed Board of Health intruded on the City Council's authority when it imposed the rule, citing in part a case from the 1980s which questioned whether a state public health council had the authority to regulate smoking in public places.
Mr Bloomberg, who has championed the ban as a novel measure for fighting obesity, vowed to appeal against the decision.
"We believe the judge is totally in error in how he interpreted the law, and we are confident we will win on appeal," he said. He added: "One of the cases we will make is that people are dying every day. This is not a joke. Five thousand people die of obesity every day in America."
For now, though, the ruling it means the axe will not fall on super-sized pop, sweetened teas and other high-sugar beverages in restaurants, movie theatres corner delis and sports arenas.
The drinks limit follows other efforts Mr Bloomberg has made to improve New Yorkers' eating habits, from compelling chain restaurants to list calorie counts on their menus to barring artificial trans fats in restaurant food to prodding food manufacturers to use less salt. The city has successfully defended some of those initiatives in court.
The judge acknowledged the impact of obesity on the city's residents, and noted that those bringing suit likewise did not dispute obesity is a significant health issue, but questioned how much sugary drinks can be blamed for it. Ultimately the judge said whether the issue of obesity is an epidemic is not the key issue here, but whether the board of health has the jurisdiction to decide that obesity is such an issue that it could issue a cap on consumption of sugary drinks.
Critics said the measure is too limited to have a meaningful effect on New Yorkers' waistlines. And they said it would take a bite out of business for the establishments that had to comply, while other places would still be free to sell sugary drinks in 2-litre bottles and super-sized cups.