New York high court confirms Bloomberg soda ban illegal

by Walter Olson on June 26, 2014

In a 4-2 decision, New York’s highest court agreed with two lower courts that New York City’s attempted ban on sugary drink portions over 16 ounces exceeded the powers of the city’s Department of Health. [Bloomberg News coverage]

That’s exactly in line with what I wrote at earlier stages of the case. At the time, some national commentators did not seem to have checked out the actual reasoning of Judge Milton Tingling’s decision, which rested squarely on a distinctive 1987 New York precedent called Boreali v. Axelrod which had struck down the state health department’s attempt to regulate smoking in public places as beyond its properly delegated authority. The soda case was (as they say) on all fours with Boreali, and although the Court of Appeals could have overturned Boreali, as some academics urged, or found grounds to dodge its effect, as the two dissenters did, the court instead chose to apply the precedent as it stood. That confirms that the Bloomberg-appointed Board of Health, in its eagerness to assert powers not rightly its own, had casually broken the law.

One of the two dissenters was Chief Judge Jonathan Lippman, the latest of many indications that he is inclined to pull the Court of Appeals away from many of the positions and habits that have given it a centrist reputation among state courts.

{ 2 comments… read them below or add one }

1 Caulfield 06.26.14 at 6:31 pm

And absolutely no sanctions/punishment for Bloomberg and City officials for acting illegally.

Justice not served… and they are free to perform similar illegal acts as much as they want — no personal consequences and the taxpayers get stuck with all their legal costs.

2 Audrey Silk 06.27.14 at 5:42 am

This bodes well for our case against NYS Office of Parks that imposed a smoking ban on their properties. We cited Tingling’s ruling in the first round that we won. Now, in the first appeal round (by Parks), we have that citation cemented. I say “first” because, as we see, these agencies have no humility and when we win the appeal they will not know to stop.

Founder, NYC Citizens Lobbying Against Smoker Harassment (C.L.A.S.H.)

Leave a Comment

You can use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>