NEW YORK, June 4 (Reuters) - Mayor Michael Bloomberg's
proposed ban on large-size sugary soft drinks in New York isn't
winning him many new friends in the beverage and restaurant
Trouble is, they may not be able to stop him, at least in
The mayor's proposal would change the city's administrative
code, giving the health department the power to levy fines on
most restaurants, movie theaters, food carts and delis that sell
sugary soft drinks larger than 16 ounces.
The health board is expected to pass the plan later this
year, and the law could take effect by next spring.
Between now and then, many expect lawsuits to be filed, most
likely by industry groups rather than individual companies,
challenging the city's right to place such restrictions on drink
Yet if either the National Restaurant Association or the
American Beverage Association filed suit -- both said last week
they were exploring their legal options -- they would likely be
in for an uphill battle, experts said.
"There are so many examples where states impose standards on
consumer products sold within their borders," said Michelle
Mello, a professor of law and public health at Harvard
University who has studied obesity. "It seems hard to believe
that this would be singled out as unreasonable by a court."
Several of the largest soft-drink makers -- Coca-Cola Co,
PepsiCo Inc and Dr Pepper Snapple Group Inc -- either did not
return calls for comment or referred questions to the beverage
The Bloomberg administration has successfully fought off
legal challenges to past health initiatives, including a ban on
smoking inside bars and a requirement that chain restaurants
print calorie counts on their menus. It has said it is confident
the sugar-drink proposal would withstand legal scrutiny.
That may not keep the industry from taking their shot in
It is too early to tell what specific legal claims industry
groups might pursue, but attorneys who work with the food and
beverage industries as well as experts in public health law said
their best bet in challenging the proposal would be a federal
lawsuit claiming a violation of the U.S. Constitution.
Possible claims include arguing that the law does not have a
rational basis or that it violates the Constitution's commerce
Under a rational basis claim, courts can strike down as
unconstitutional legislation that is not rationally related to a
legitimate government interest.
In this case, the city has a valid interest in protecting
public health, experts on both sides said. But the city would
have to demonstrate that the ban would lower consumption of soft
drinks and that doing so would reduce obesity among New York
residents, thereby improving public health.
Some industry lawyers said the fact that the law would
permit certain businesses to sell large drinks -- grocery
stores, for instance -- and would not restrict free refills or
multiple purchases undermines the city's argument that the ban
would lower consumption.
"When you can carry two 16-ounce cups, the burden is on them
to show that they're accomplishing this objective," said Marc
Scheineson, a former Food and Drug Administration associate
commissioner who heads the food and drug practice for
Washington-based law firm Alston & Bird.
The beverage industry, which previously clashed with
Bloomberg over the city's aggressive anti-soda advertising
campaign, argues that targeting sugary soft drinks, rather than
high-fat foods or other items, does nothing to combat obesity.
But courts tend to be extremely deferential to the judgments
of legislative bodies and agencies, said John Humbach, a law
professor at Pace University.
And Harvard professor Mello said the association between
sugary soft drinks and obesity was clear and the ban would
likely be seen as a reasonable way of driving down consumption.
Another option for the beverage and restaurant industries is
to claim that the city's move violates the Constitution's
Commerce Clause, which gives Congress the authority to regulate
The Supreme Court has interpreted that clause to mean that
states are prohibited from taking actions that harm interstate
Lawyers for the beverage industry could argue that the ban
will harm large producers that ship soda syrup or cups across
state lines into New York, experts on both sides said.
At the same time, the Constitution grants states, and by
extension municipalities, enormous power to regulate public
health and safety.
A court would balance the potential negative impact on
interstate commerce against the city's authority to regulate
public health, a contest that the city would probably win, said
Lawrence Gostin, a Georgetown University law professor who
specializes in public health.
"To me, the states have sovereign power to regulate for the
public's health, and this is a classic public health
intervention," he said.
For now, the industry is waging war on another front: public
relations. The Center for Consumer Freedom, an advocacy group
backed by the food and restaurant industries, took out a
full-page ad this weekend in the New York Time.
It depicted Bloomberg as a nanny in a purple dress.
(Reporting by Joseph Ax)
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