Appeals court will consider blocked Bloomberg NYC soda ban on Tuesday

By Joseph Ax

NEW YORK (Reuters) - Lawyers for New York Mayor Michael Bloomberg's administration will try to convince an appeals court on Tuesday to reinstate a ban on large sugary drinks, three months after a judge struck it down at the 11th hour as an illegal overreach of executive power.

The law, one of Bloomberg's signature public health policies, would have barred sugary drinks larger than 16-ounces from businesses under the city health department's authority, including restaurants, movie theaters and other food-service establishments. The ban did not apply to businesses that are not subject to health inspections, including convenience stores such as 7-Eleven.

The beverage and restaurant industries challenged the law in court. In March, a day before the law was to take effect, State Supreme Court Justice Milton Tingling in Manhattan invalidated it on two grounds: that the ban's exceptions made it arbitrary and that the mayoral-appointed health board improperly sidestepped the city council when it passed the law in September 2012 without legislative approval.

After Tuesday's arguments before a panel of judges at the state Supreme Court's Appellate Division, it could take months for the court to issue a ruling.

Bloomberg steps down from his third and final term as mayor at the end of the year and it remains unclear whether his successor will try to impose the ban.

The outcome of the case could have long-term implications for future mayors who want to address public health issues such as obesity, both sides have said.

Matthew Greller, who represents the plaintiff National Association of Theatre Owners of New York State, said in April: "It was never about obesity; it was never about soda ... The question, fundamentally, is: What is the power of a city agency?"

City lawyers have likened the sugary drink law to previous health board policies such as adding fluoride to the water supply and requiring chain restaurants to post calories that were upheld in courts. But the plaintiffs have said a ban that limits consumer choice is far more intrusive.

Fay Ng, the city attorney leading the appeal, said in an email: "The board of health took reasonable and completely appropriate steps to combat the city's growing obesity epidemic."

In a statement on Monday, Chris Gindlesperger, a spokesman for plaintiff American Beverage Association, which represents companies such as The Coca-Cola Co, PepsiCo Inc and Dr Pepper Snapple Group Inc, said the group was confident that Tingling's ruling would stand.

"While we commend the city for its commitment to health and wellness, the ban would have arbitrarily and disproportionately penalized small businesses," he added.

(Reporting by Joseph Ax. Editing by Andre Grenon)