Mayor Bloomerg's third term ends in a mere seven months and he's working against the clock to overturn a court order that halted his signature legacy soda ban back in March. (If that doesn't work, hey, there's always a fourth term!) Lawyers for the city are back in court this week, and so far it looks like the judges are poised to give the beverage industry a Coke and a smile.
During yesterday's hearing, four justices of the First Department of the Appellate Division (Dr.) peppered Bloomberg's lawyers with jolting questions. The Times says they endured a "barrage of skeptical questions," including this zinger from Appellate Division Justice Dianne Renwick, who demanded to know "Why the limits on some [drinks] and not others?"
The previous ruling that halted the ban had deemed the ban "arbitrary and capricious" because it targeted stores under the purview of the Health Department but left a loophole for big chains like 7-Eleven to continue selling giant big gulps. And the ban would not have prohibited all sugary drinks. "How about pomegranate juice and blueberry juice?" Judge Rosalyn Richter asked. "What about sugar-infused energy drinks?"
“Whatever number you pick can be viewed as arbitrary,” argued city attorney Fay Ng, referencing the decision to limit certain drink sizes at 16 ounces. "The portions have exploded to such an extent that the default portions are much larger than they should be. Studies have shown that people eat or drink what's in front of them."
The Times reports that a lawyer for the beverage industry "received a less frosty reception from the court" than the city lawyers did. But DOH Commissioner Dr. Thomas A. Farley says you can't read any sugar-free tea leaves from the questioning. "The justices were doing what they are supposed to do, which is to be very skeptical and to probe the weaknesses of the arguments on either side, and I think the city’s lawyers responded very effectively," Farley told reporters after the hearing.
A decision is expected either this month before the summer recess or in the fall. If Bloomberg loses this round, he has one more chance to appeal to the state's highest court, the Court of Appeals. After that, we'll have a new mayor, and the fate of big soda could be in the hands of big Weiner.