By Joseph Ax
NEW YORK, Feb 20 (Reuters) - Beverage and restaurant
industry groups asked a judge on Wednesday to temporarily block
New York City's ban on large sugary drinks from restaurants and
elsewhere, saying businesses will be forced to spend money to
comply with a law that may not survive.
The American Beverage Association, the National Restaurant
Association and several local pro-business groups have filed an
Article 78 proceeding against the city over the legality of the
ban, which outlaws the sale of sugary drinks larger than 16
ounces from many of the city's food service businesses,
including movie theaters and street carts.
The ban, which Mayor Michael Bloomberg has touted as an
effort to reduce obesity, was passed last fall by the
Bloomberg-appointed health board. It is set to begin March 12,
though city officials have said they would not start issuing
$200 violations until June.
James Brandt, the plaintiffs' lead lawyer, told Manhattan
Supreme Court Justice Milton Tingling that hundreds of thousands
of businesses would face significant costs in complying with the
new regulation, including retooling bottling factories,
reconfiguring store layouts and reprinting menus.
He urged Tingling to issue a preliminary injunction to
maintain the status quo until the judge rules on the merits of
the Article 78 proceeding.
"Every single dollar that's spent between now and the time
this court rules will have been 100 percent wasted if the court
strikes the ban down," Brandt said.
City attorney Mark Muschenheim countered that plaintiffs had
failed to demonstrate their members would suffer irreparable
harm as a result of the ban, in part because the city has agreed
not to fine offenders during a three-month grace period. He said
the public interest in combating obesity as quickly as possible
outweighs any potential costs to the businesses.
"This epidemic is getting worse," said Muschenheim, adding
that nearly a quarter of New Yorkers are obese.
Tingling did not indicate when he will rule on the request
for an injunction or on the merits of Article 78.
HEALTH BOARD QUESTION
The ban represents the Bloomberg administration's latest
attempt to use the city's regulatory power to promote public
health, following a ban on smoking in restaurants and bars and a
requirement that chain restaurants post calorie counts.
The plaintiffs claim the ban amounts to an unconstitutional
infringement on consumers and will arbitrarily harm certain
businesses, since large sugary drinks will still be sold at
businesses that are not under the purview of the health
department, including grocery and convenience stores.
They claim the health board illegally sidestepped the city
council when it approved the ban. Several council members have
filed papers in support of the plaintiffs.
The case is New York Statewide Coalition of Hispanic
Chambers of Commerce v. New York Department of Health and Mental
Hygiene, New York State Supreme Court, New York County, No.
For the American Beverage Association: James Brandt, Richard
Bress, William Rawson and Sean Krispinsky of Latham & Watkins.
For the National Restaurant Association: James Quinn,
Salvatore Romanello and Gregory Silbert of Weil, Gotshal &
For the Soft Drink and Brewery Workers Union, Local 812:
Evan Krinick and Barry Levy of Rivkin Radler.
For the New York Statewide Coalition of Hispanic Chambers of
Commerce and the New York Korean-American Grocers Association:
Steven Molo and Ben Quarmby of Mololamken.
For the National Association of Theatre Owners of New York
State: Matthew Greller.
For the city: Mark Muschenheim of the New York City Law
Department; Thomas Merrill of the New York City Department of
Health and Mental Hygiene.
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