The headline at the Wall Street Journal website yesterday afternoon says it all: Judge Halts New York City Soda Ban.

In an announcement late yesterday afternoon, New York Supreme Court Judge Milton Tingling handed down his ruling that deemed a ban on sweetened beverages sold in containers more than 16 ounces “invalid.”

Specifically, the judge ruled that the ban violates the separation of powers doctrine because the New York City Board of Health, a group of political appointees who imposed the ban at Mayor Bloomberg’s request, lack the authority to impose a limit or ban on the amount of soda and other sweetened beverages people can purchase in the city. That is the purview of elected representatives – not political appointees. The Judge drove home that point in his ruling by stating, “The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine.”

Next, Judge Tingling ruled the ban is “arbitrary and capricious,” because it applies to some food establishments but not to others. We have made this very argument at Sip & Savor:

“The small, family run deli in Queens will be prohibited from selling a 20 ounce bottle of soda to wash down the pastrami on rye a customer purchases. But chain grocery and convenience stores can sell as much soda in as large a container as they choose. It seems a random policy to anyone not in government.”


Judge Tingling was perhaps a bit more eloquent in his assessment:

"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.”


This was a good ruling for the parents in New York who take their kids out for pizza this coming weekend and order a pitcher of soda to share with the family. It’s also a good ruling for the small business owners who would have lost business and revenue to bigger stores not affected by the soda ban. In short, yesterday’s court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban.