Legal Debate Pops Over Soda Plan - Wall Street Journal

By MICHAEL HOWARD SAUL and TAMER EL-GHOBASHY

Beverage and restaurant industry executives are exploring their optionsâ€"including the possibility of filing a lawsuitâ€"for blocking Mayor Michael Bloomberg's proposal to ban city restaurants and a variety of other venues from selling sugary drinks in containers larger than 16 ounces.

"Everything is on the table," said Christopher Gindlesperger, director of public affairs for the American Beverage Association in Washington.

Mr. Bloomberg spent the better part of the week trumpeting his plan as a creative health initiative that would pass legal muster, an opinion several attorneys specializing in civil matters backed. But some industry experts disagreed, saying they believe there's ample room to challenge the proposal in court.

"It's a pretty slam-dunk win," said Robert Bookman, an attorney who has long represented the restaurant industry. He added: "They don't have the authority to interfere with interstate commerce. Just because they license restaurants doesn't mean that they can determine every item that could be sold in a restaurant or the sizes of it."

Mr. Bookman said it would be "impossible for there to be a food industry" if every locality in the U.S. established its own set of rules governing, for example, product sizes. Size of products is specifically regulated by the federal government, he said.

Other lawyers suggested a legal argument could center around sugar, asking why the sugar in soda is being singled-out while that in candy is not.

The mayor and members of his administration have said repeatedly they believe the city's Board of Health, an 11-member panel appointed by the mayor, has the authority to prohibit venuesâ€"such as restaurants, mobile food carts, delis and concession stands at movies, stadiums and arenasâ€"from selling sugary beverages in cups or containers larger than 16 ounces.

City officials said they don't expect the ban to be imposed before March of next year. With Mr. Bloomberg set to leave office in December 2013 and the possibility that litigation could tie the matter up in court for months, some say the proposal's opponents could succeed by delaying the ban until Mr. Bloomberg's successor takes the helm.

Some mayoral candidates have already signaled they have reservations about the mayor's proposal. One potential candidate, Manhattan Borough President Scott Stringer, said Friday he's leaning toward supporting the proposal, but believes it needs further public scrutiny.

Scott Greenfield, an attorney, said the government is permitted "reasonable regulation," and a proposal that is stated to be in the interest of public health could pass "rational scrutiny" in court. "Everybody can think it's a dumb idea but it doesn't make it unconstitutional," he said.

Ron Kuby, a civil-rights attorney who is known for his challenges of government policies and practices, agreed, saying that governments are given broad powers to regulate "the general area of sales and goods and general economic activity."

Mr. Kuby said he believes there is no legal requirement to explain banning large sodas versus large chocolate bars. In the area of sales and goods, "rights can be regulated with a very blunt instrument" as long as they don't infringe on fundamental constitutional rights.

A legal challenge, Mr. Kuby said, would ultimately fail. The only way "to remedy this," he said, "is through the democratic process."

On Friday, McDonald's weighed in via Twitter: "@MikeBloomberg We trust our customers to make the choices that are best for them."

While the industry scrambles to craft a legal strategy to block the proposal, other avenues are also being considered. Executives are discussing the possibility of trying to persuade the City Council or state Legislature to block the ban via legislation.

Jamie McShane, a spokesman for the council, said council lawyers have determined that the board has the authority to deal with this type of proposal. It has yet to be determined whether the council has the power to try to block it, or whether it will try to do so, he said.

A spokesman for Assembly Speaker Sheldon Silver, a Manhattan Democrat, said the speaker has reservations about the mayor's proposal but he "does not envision legislation to stop" it before the sessions ends this month.

Gov. Andrew Cuomo said Friday he doesn't believe the mayor's proposal can do "any harm." If voters disapprove of it, they can elect a new mayor next year who could undo the ban, he said.

Industry executives said they will continue aggressive efforts to inform the public about the impact of sugar-sweetened beverages on obesity. While there will be an opportunity to lobby the Board of Health, many say that could prove futile since the members are appointed by the mayor.

The proposal is slated to be introduced at the board's June 12 meeting.

Write to Michael Howard Saul at michael.saul@wsj.com and Tamer El-Ghobashy at tamer.el-ghobashy@wsj.com

A version of this article appeared June 2, 2012, on page A19 in the U.S. edition of The Wall Street Journal, with the headline: Legal Debate Pops Over Soda Plan.