You Dumb ….

That’s what New York State Supreme Court Judge Milton Tilling said to New York City’s lame duck mayor, Michael Bloomberg, on the latter’s…ill-advised…”sugary drink” ban.

Tilling opened his opinion by noting, correctly, the irrelevance of Bloomberg’s “obesity epidemic” motive for the ban—the question before him was simply the legitimacy, the legality, of the ban itself.  Motives, say I in expansion of Tilling’s point, are appropriate considerations only in determining sanctions, given a finding of illegality; they never can be justification for the illegality.

[The city does not have authority to] limit or ban a legal item under the guise of ‘controlling chronic disease,’ as the [city’s health department] attempts to do.  One of the fundamental tenets of democratic governance here in New York, as well as throughout the nation, is the separation of powers.  No one person, agency, department or branch is above or beyond this.

[The City Charter does not grant the health department] sweeping and unbridled authority to define, create, authorize, mandate and enforce [health codes governing food establishments and food preparation.  The soda ban] would not only violate the separation of powers doctrine, it would eviscerate it.

The judge’s beef here is that the health department just up and did the ban.  The ban was never approved by the city council.  The city’s elected representatives are the only ones who can create city law.  In fact these representatives had already explicitly rejected similar ban efforts.

Further, the Bloomberg Ban was unconstitutionally vague, capricious, and stupid.  (OK, I added that last part.  There is no Felony Stupid bar in New York’s or our Federal Constitution.)

The plaintiffs in this case pointed out that

…the Rule exempts soy based milk substitutes, but other milk substitutes such as almond, hemp and rice milk are not exempt.  The Rule also does not preclude unlimited free refills or multiple purchases of 16-oz. beverages or providing unlimited sugars after purchase at the regulated businesses….

And so on.  Tilling agreed.

The court finds that the regulation herein is laden with exceptions based on economic and political concerns. … The statement of financial costs related to the chronic epidemic [by the defendants] further evidences a balancing being struck between safeguarding the public’s health and economic considerations.  This is impermissible….

Further (the motive rejection above notwithstanding),

…the stated premise of…the Rule is to address the rising obesity rate in New York City. … The Rule is nevertheless fraught with arbitrary and capricious consequences.  The simple reading of the Rule leads to…uneven enforcement even within a particular City block, much less the City as a whole.  Furthermore…the loopholes in this Rule effectively defeat the stated purpose of the Rule.  It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.


Tilling’s ruling can be read here or here.

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