Nanny Bloomberg’s soda ban struck down once again

In another big win for consumer freedom, an New York state appellate court upheld a previous state Supreme Court ruling that struck down New York City Mayor Michael Bloomberg’s ban on sugary drinks over 16 ounces.

The four-judge panel unanimously ruled yesterday that the soda ban violated the state constitution’s separation of powers because it was enacted by an administrative body, the New York City Board of Health, and not through legislative action.

“The separation of powers doctrine of the State Constitution establishes the boundaries between actions of the legislature and an administrative agency. 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,” wrote Judge Dianne Renwick in the opinion (begins on page 47).

The New York City Board of Health, per Mayor Bloomberg, approved a measure last year that banned the sale of sodas and other sugary drinks over 16 ounces in an effort to combat obesity. The move was slammed as an example of the nanny state gone wild, with many noting that it wouldn’t do much, if anything, to trim the waste-lines of New Yorkers.

The law was blocked earlier this year by a New York Supreme Court judge who called the ban was “fraught with arbitrary and capricious consequences” and had so many loopholes that it was effectively unenforceable.

Renwick points out that the broad authority that the New York City Board of Health was trying to assert would mean that it would have an “unfettered delegation of legislative power,” far beyond what was intended by the state constitution. Moreover, she notes that the city’s charter “provides that the Board of Health may exercise its power to modify the health code as long as it is ‘not inconsistent with the constitution.’”

“In our view, the City Charter’s Enabling Act, granting the Board of Health explicit power to establish, amend, and repeal the Health Code, was clearly intended by the legislature to provide the agency with the discretion to engage in interstitial rule making designed to protect the public from inherently harmful and inimical matters affecting the health of the City,” added Renwick. “The general terms employed in the Enabling Act must be construed in relation to the more specific duties imposed and the powers conferred by the act taken as a whole. When thus construed, the general terms are restricted, expressing the true intent and meaning of the legislature.”

Though the appellate court was careful not to weigh in on the merits of the policy, the judges questioned why some drinks with nutritional value were targeted and why the New York City Department of Health never explicitly labeled sodas and other sugary drinks.

As noted, this is a big win for consumer freedom, which allows people to make decisions based on what they believe is best for themselves, and not busybody, nanny state bureaucrats, like Nanny Bloomberg, who are trying to impose a certain lifestyle through regulations that infringe upon individual rights.

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