[JURIST] The First Department of the New York State Supreme Court Appellate Division [official website] on Tuesday uphled [opinion] the lower court’s March ruling [JURIST report] that a municipal agency cannot ban large portions of sugary drinks. Although the court conceded that over-consumption of high sugar content beverages is directly related to an increase in diabetes and juvenile mortality rates, it held that the state constitution does not grant an executive agency the power to curb the portions of such drinks:

Because the constitution vests legislative power in the legislature, administrative agencies may only effect policy mandated by statute and cannot exercise sweeping power to create whatever rule they deem necessary. In other words, “[as] an arm of the executive branch of government, an administrative agency may not, in the exercise of rule-making authority, engage in broad-based public policy determinations.

The American Beverage Association, a plaintiff in the case, stated [press release], “We are pleased that the lower court’s decision was upheld. With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City.” Mayor Michael Bloomberg disagreed, commenting [press release], “Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic.”

A judge for the New York Supreme Court [official website] in March permanently enjoined [order, PDF] enforcement of amendments to the New York city regulation [NYC Health Code 81.53, PDF] prohibiting the sale or provision of “sugary” beverages in large cups or containers by food service establishments. In October groups representing restaurants, beverage makers and movie theaters challenged the link between regulation-defined “sugary” drinks and obesity, and asserted that “food service establishments” were arbitrarily defined such that a New York City resident could purchase a large sugary beverage from one server after denial from another next door. The New York City Department of Health [official website] approved Bloomberg’s plan to promulgate the amended regulation in September, pursuant to which any establishment receiving a New York Health Department letter grade would be subject to a $200 fine for the sale of any sugary beverage in a container over 16 ounces. The NYDOH cited statistics connecting growing obesity and disease rates among NYC adults and children to increased portion sizes and the psychology of “thirst.” Litigation over food health and safety has arisen in the past. In February 2009 the US Court of Appeals for the Second Circuit upheld [JURIST report] a New York City law that requires chain restaurants to post caloric content information on their menus and menu boards in an effort to address obesity rates.