NYC Business Lawyer: Sugary Drinks Ban Infringes Rights

Our New York City restaurant lawyers are standing firm in our resistance to the citywide limitations imposed on sales of large containers of high-sugar drinks.

Although the city’s Health Department is standing by the ruling, which is slated to go into effect March 12, despite a pending lawsuit arguing that the measure infringes upon small business and consumer rights, and wasn’t approved through the proper channels. In addition to the American Beverage Association, the Hispanic Federation and the New York state arm of the National Association for the Advancement of Colored People recently joined the suit, arguing that minority-owned drink manufacturers and sellers are going to be disproportionately negatively affected.

Although the law was passed by the city’s Health Department and rubber-stamped by Mayor Michael Bloomberg, it should have actually gone before city council for approval – a stance with which five city council members are also in agreement.

In fact, the council members have argued in court documents that the elected council is the proper forum to weigh all the competing interests. However, Bloomberg’s office contends that the health board, which is comprised of medical doctors and other health professionals, should get the larger say when it comes to matters of health.

Health leaders say that the obesity epidemic – particularly among minority populations – renders the decision non-negotiable. The measure prohibits restaurants and most other businesses from selling containers larger than 16 ounces of high-sugar beverages, such as soda. Those who violate the law could be inviting a fine of up to $200, though the city has said it won’t likely begin enforcement action until early summer – calling the delay a “grace period.”

As a simple matter of practicality, the law doesn’t make much sense. For starters, it wouldn’t prevent someone from purchasing more than one 16-ounce drink if they so chose. It also fails to address other obesity-causing elements, such as high-calorie, high-fat content foods – though we can’t be complacent in assuming such a measure won’t be the next move for this administration.

The law also does not apply to sales of alcohol, juice or milk-based products, and convenience stores and supermarkets are exempt. If the goal is to curb obesity, consider a recent study by the Chicago Health Policy Center that revealed black children and teens are more than twice as likely as white children to drink more than 500 daily calories of sugary fruit juice drinks. That – not soda – was the biggest issue. Yet juice won’t be regulated in the same way.

In fact, as the American Beverage Association has pointed out, sugary drink consumption is actually declining in America and is no longer the primary driver of obesity. What’s more, limiting soda sales may only cause buyers to consume more fruit drinks – which are equally damaging.

It’s not that we wish the law was more expansive. However, it’s likely to be ineffective and as written, it’s inherently unfair – not just to the consumers but to manufacturers and sellers as well.

Some health advocates have indicated that a better approach would be for city leaders to work with advertisers of these products to launch a public health awareness campaign – one that can target all obesity contributors, without infringing upon individual and business rights.

The Wright Law Firm is a business law firm located in Midtown Manhattan. Call (212) 619-1500 for a confidential consultation.

Additional Resources:

Beverage Attorney: NYC drink limit is bad for the public, Jan. 23, 2013, By Jennifer Peltz, Associated Press

More Blog Entries:

NYC Beer and Wine Summit a Boon for Businesses, Nov. 9, 2012, New York City Restaurant Lawyer Blog

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