From The Bench, More Than 16 Ounces

In the news today: NYC Soda Ban Goes Flat. The case I quote from below concerns Mayor Bloomberg's proposed soda ban that was to go into effect tomorrow, and which would have prohibited businesses from selling "large sugary drinks," defined as "any beverage sweetened with sugar or another caloric sweetener that contains more than 25 calories per 8 fluid ounces and contains less than 51% milk or milk substitute by volume as an ingredient." As a friend said the other day, "We can practice religion, protest the government, and bear arms but we can't have a soda over 16 ounces?!" The court's arguments, however, have less to do with the pitfalls of paternalism and more to do with overreaching and inconsistency:

"An administrative regulation is upheld only if it has a rational basis and is not unreasonable, arbitrary or capricious. The Rule (soda ban) is. . . fraught with arbitrary and capricious consequences. The simple reading of the Rule leads to. . . uneven enforcement even within a particular City block. . . the loopholes in this Rule effectively defeat the stated purpose of the Rule. 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. 

[Furthermore], this court agrees that the regulation herein takes the issue [of limitless authority] to new heights. To accept the respondent's interpretation of the authority granted to the Board by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination. The fact that respondents interpret the Charter precisely to conclude the same, tolls the bell on this regulation. The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine. The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar sweetened beverages."

from the NY Supreme Court in N.Y. Statewide Coalition v. NYC Dept. of Health