By Joseph Ax
NEW YORK, Oct 12 (Reuters) - Soft drink makers and a
restaurant group filed a lawsuit on Friday seeking to block New
York Mayor Michael Bloomberg's upcoming ban on large sugary
drinks.
The mayor's Board of Health overstepped its authority when
it passed the regulation, the lawsuit said. The power to approve
such legislation lies solely with the city council, it said.
The plaintiffs include the American Beverage Association and
the National Restaurant Association, along with a number of
unions and pro-business groups.
The ban, the first of its kind in the United States, outlaws
the sale of sugary drinks larger than 16 ounces everywhere in
New York City except grocery and convenience stores. It is the
latest step in Bloomberg's quest to combat obesity. Previously,
he has required chain restaurants to post calorie counts on
their menus and banned trans fats citywide.
The soft drink and restaurant industries have said the ban
is an infringement of personal freedom, and cited polls that
show a majority of New Yorkers oppose the restriction. A legal
fight has been expected ever since Bloomberg proposed the ban in
May.
The lawsuit, filed in state court in Manhattan on Friday,
asks the court to bar the law before it can take effect next
March.
"This case is not about obesity in New York City or the
motives of the Board of Health in adopting the rule being
challenged," the lawsuit said. "This case is about the Board of
Health, appointed by the mayor, bypassing the proper legislative
process for governing the city."
The lawsuit also claims the rule is "arbitrary and
capricious," because it applies only to some businesses and
targets only certain types of beverages.
"Delis and hotdog stands are barred from selling a 20-ounce
lemonade, but the 7-Eleven a few feet away remains free to sell
Big Gulps," the lawsuit said.
Several legal experts, however, have said they expect any
court challenge to face an uphill battle, given the health
department's power to regulate eateries in the city.
Marc LaVorgna, Bloomberg's chief spokesman, said the
"predictable, yet baseless" lawsuit will put an even greater
spotlight on an obesity epidemic that kills 6,000 New Yorkers a
year.
City officials have cited public health statistics showing
that 58 percent of the city's adults and nearly 40 percent of
public school students are obese or overweight.
The ban defines a sugary drink as a beverage that includes
sugar or another caloric sweetener, has more than 25 calories
per 8 ounces, and does not contain more than 50 percent of milk
by volume.
The case is New York Statewide Coalition of Hispanic
Chambers of Commerce et al. v. The New York City Department of
Health and Mental Hygiene et al., 653584/2012, New York State
Supreme Court, New York County.
For the business groups: James Brandt, Richard Bress,
William Rawson and Sean Rapinsky of Latham & Watkins; James
Quinn, Salvatore Romanello and Gregory SIlbert of Weil, Gotshal
& Manges; Evan Krinick and Barry Levy of Rivkin Radler; Matthew
Greller; and Steven Molo and Ben Quarmby of Mololawken.
For the city: not immediately known.
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