Bloomberg’s sugary drink ban could be put on hold; judge’s decision awaits

Posted at 7:22 PM, Feb 20, 2013
and last updated 2013-02-20 20:09:20-05

Mayor Michael Bloomberg’s ban on large, sugary drinks may be scheduled to go into effect in less than three weeks, but it could be delayed, depending on how well either of two teams of lawyers argued before a judge on Wednesday.

The ban, which would prohibit the sale of soft drinks, sports drinks, sweetened hot beverages and other sugary drinks larger than 20 ounces, met opposition in Manhattan Supreme Court from the American Beverage Association and a coalition of groups asking Judge Milton Tingling for a preliminary injunction.

It’s an order which, if granted by the judge, would stop the ban from being put into place until Judge Tingling could decide another, larger issue before him — the legality of the ban itself.

Lawyers for the beverage industry have faced off against the city’s attorneys to argue that the ban would unfairly restrict the business of a variety of merchants.

The ban is scheduled to go into effect March 12, but beverage industry lawyers on Wednesday told Judge Tingling that since it is not clear when he will rule on the legality of the ban, he should in the meantime temporarily strike the ban down.

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Beverage industry leaders say that one reason they need a suspension of the ban is to better prepare for it, should it eventually go forward.

“The impacted businesses would like some more certainty on when and how they might need to adjust operations, pending the outcome of the lawsuit” determining the legality of the ban, Christopher Gindlesperger of the American Beverage Association told PIX11 News in a statement.

“But the bottom line is, depending on the timing of the decision and the outcome,” the statement read, “the impacted businesses may need even more time” to determine changes that the ban would require, such as determining how many cups and bottles 16 ounces or smaller in size will have to be ordered by New York eateries.

However, an unscientific survey of consumers and vendors near the courthouse where the case was argued showed that the industry’s claim that it needs more time may be overstated.

Willie Fernandez, a beverage truck driver who was delivering cases of iced tea and soda Wednesday afternoon, said that his inventory was largely compliant with the ban already.  “Almost all our bottles are 16 ounces,” he told PIX11 News.  “We barely sell 20 ounce, or 32 or 64, so it doesn’t matter. To us, it’s the same.”

Another beverage truck driver, Louie Ramirez, mostly delivers 12 ounce cans.  PIX11 News asked him if his inventory was moving.  “You can tell me,” he said as he opened up the cargo bay of his nearly empty box truck.  “This [had been] almost full of cans.”

Inside a lunch restaurant across the street from Manhattan Supreme Court, Markee Pressley enjoyed a pasta meal, accompanied by a 20-ounce cola.  He said he didn’t want all of the drink that was available for sale, but said he had no choice.

“Actually, I prefer less soda,” he said.  “But sometimes it comes so big, that’s what you have to buy.”

That lack of smaller choices he complained about is why attorneys from the city’s law department argued in court that the sugary drink ban should go into effect as scheduled with no injunction, and that Judge Tingling should rule the ban legal.

The only entity that can determine when either of those decisions will be made is the decision maker, Judge Tingling, himself.  His rulings could come after the ban goes into effect on March 12th.  If either does, there’s a possibility, that the ban could end, either temporarily or permanently, after it’s imposed.