At least for now:
Judge Tingling determined that Mr. Bloomberg exceeded his authority by sidestepping the City Council and placing the issue before the city’s Board of Health, a panel whose members were each appointed by the mayor.
Mr. Bloomberg said at the news conference he has no plans to bring the measure before the City Council.
Rick Hills, a law professor at New York University, said, “There’s a sense that Bloomberg has an imperial disdain for the City Council, and this ruling says ‘no more rule by mayoral decree.’”…
The judge ruled the regulations are “fraught with arbitrary and capricious consequences,” noting how there would be uneven enforcement within a single city block. The regulations didn’t affect the Big Gulp at 7-11 because supermarkets and convenience stores are regulated by the state, not the city.
He wrote that regulations exclude other beverages that have significantly higher concentrations of sugar sweeteners and calories on “suspect grounds.” The regulations don’t limit patrons from getting refills; that provision, the judge said, appears to “gut the purpose of the rule.”
I continue to be puzzled by the comparison of this law to the ban on smoking in restaurants and other public places. Although it’s true that, as the article states, there is “irrefutable statistical evidence that smoking is bad for people in innumerable ways,” and the deleterious effects of soda are less clear, that’s by no means the only—or even the most important—difference. The argument behind the restaurant smoking ban has little to do with the health of the smoker him/herself. It is based on evidence (somewhat controversial, by the way) that second-hand smoke harms the health of the passive recipient of the smoke, and therefore is an attempt to protect the smoker from harming others.
Right now I’m not going to go into an analysis of the data about second-hand smoking’s danger; let’s just say that a while back I read up on the arguments pro and con and found all the research to have been poorly done and nonpersuasive, in part because there are problems inherent in measuring exposure to second-hand smoke.
However, that’s not really the point. The point is that protecting the non-smoker from the dangers of second-hand smoke was the argument used to ban smoking in public places such as restaurants. There is no similar argument that the imbibing of large soft drinks harms the onlooker, unless it offends his/her esthetic sense, which is hardly the same..