For instance, while striking down the ban on big sodas Manhattan Supreme Court Justice Milton Tingling had held the ban to be arbitrary and capricious, and that it allowed the city’s health board to overreach itself. According to city lawyers, Tingling had focused on the fact that traditionally the health board has targeted acute and pestilent disease, rather than chronic illnesses like obesity.
In counter, the brief on behalf of the city observed, “The Board has protected the health of New Yorkers from chronic and preventable diseases and conditions – including cardiovascular disease – through its authorized powers to fluoridate the water supply, restrict the use of lead paint, require the posting of calorie counts on menus, and limit the use of trans fats at food service establishments.”
A big number of health and minority groups also filed two amici in support of the city. The groups were led by the National Alliance for Hispanic Health and the National Association of Local Boards of Health.
However, the main reason for which Tingling had held the ban to be arbitrary was little discussed. Tingling, while striking down the ban had observed that it was inequitable, and failed in its purpose to combat disease, because it applied only to establishments under the purview of the health department.
That means while the soda ban could have been enforced on restaurants, bars, and other organizations that required approval from the health department, it did not apply to grocery shops or other outlets that could still sell big sodas. As the ban in its present form did not provide a uniform solution to the problem it tried to address, Tingling held it to be self-defeating, and therefore arbitrary.
Speaking on this point, the city brief observed that it was the intention of city authorities to spread the ban incrementally: “The ‘all-or-nothing’ approach taken by the lower court has been rejected by the Court of Appeals and other Courts.”
