JUDGE BLOCKS BLOOMBERG'S SODA BAN — Calls It 'Arbitrary And Capricious'

TBI ^ | 3-11-2013 | Kim Bhasin

[blam]

JUDGE BLOCKS BLOOMBERG'S SODA BAN — Calls It 'Arbitrary And Capricious'

Kim Bhasin
March 11,2013

A judge has invalidated New York City's ban on large sodas, which was supposed to go into effect tomorrow, saying that the limits on sugary drinks are invalid, according to CNBC.

The New York City Mayor's Office said it would appeal the decision "as soon as possible" in a tweet shortly after the ruling came down.

Bloomberg's new sugary drink regulations, which were supposed to go in effect Tuesday, are "fraught with arbitrary and capricious consequences," New York Supreme Court Judge Milton Tingling wrote.

"It is arbitrary and capricious because it applies to some but not all food establishments in the City," the judge wrote. "It excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds."

"The simple reading of the rule leads to the earlier acknowledged uneven enforcement even within a particular city block, much less the city as a whole," he continued. "The loopholes in this rule effectively defeat the stated purpose of the rule."

The ruling "provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban," a spokesperson for the American Beverage Association told the WSJ.

Earlier today, Bloomberg predicted that his new regulations would be accepted by most, according to the New York Post.

"I think you're not going to see a lot of push back here," he said.

We reached out to the Mayor's Office, which declined to comment. But it did tweet out a note:

More to come...

[NonValueAdded]

"arbitrary and capricious" i thought that was the liberal political platform.

Yeah, I think they have that trademarked

[nd76]

Actually, the Judge issued an excellent opinion, which ought to be sustained in the event Bloomberg appeals. In administrative law, a court is supposed to defer to the judgment of an “expert” administrative agency, which is a presumption built into the law. In both federal and state administrative law, a judge basically has to let an administrative regulation stand unless he or she finds that the regulation is arbitrary, capricious, or contrary to established statutory or case law.

So, therefore, the judge could not throw the regulation out based on its own merits—he had to look at it through the prism of the prevaling administrative procedure law. This is a typical analysis in all administrative appeals. If you attack the agency regulation or ruling head-on, you lose, because the court is going to defer to the “expertise” of the agency.

[Gene Eric]

>> “It is arbitrary and capricious because it applies to some but not all ... “

Think Obamacare, elected officials, corp and union exemptions, etc.

[KevinB]

I’m guessing you haven’t read the opinion. Even the reporter wrote that the judge also said it’s a legislative power not an executive power. Unless you’ve read the actual opinion you have no idea what the judge understood or didn’t understand.

[SaraJohnson]

King Bloomers is an embarassment. Hard to beleive New Yorkers have fallen so low.

[calex59]

But I don't think that can be a legal basis for overturning it.

There is a legal reason, several actually, and the judge used one of them. Equal protection under the law. However, the real reason this law should be struck down is that the constitution of the US does not give any legal authority to the government, local, state or feds, to tell us what to eat or drink or how much of it we can consume. The law is unconstitutional as are laws pertaining to smoking, guns and drugs.

By allowing the government to tell us what we could put into our bodies we opened a can of worms, now they feel they can regulate every thing we do, they simply don't have that amount of LEGAL authority and we need to strike these idiotic laws down and bring these law breaking public officials to justice.

[Gritty]

Now let's see if some NY judge will rule the SAFE Act "arbitrary and capricious".

Because it is...

[AndyTheBear]

However, the real reason this law should be struck down is that the constitution of the US does not give any legal authority to the government, local, state or feds, to tell us what to eat or drink or how much of it we can consume.

I will grant that the US Constitution gives no such authority. But I do not think the state of New York derives any authority at all from it, since it is an enumeration of Federal powers only. As far as I know there might be something in New York's constitution that the law may violate, and I hope there is. As for the 14th Amendment's equal protection clause, I can't see that it applies.

[AndyTheBear]

I guess I should justify why I don’t think the 14th Amendment applies...let me put it this way, it would apply if former slaves were denied the 32 ounces and whites were not.

[calex59]

The government, state, fed or local, has no authority to control what we eat or drink, or smoke for that matter. The constitution was written to preclude any such abuses of power and judges should uphold the constitution.

As for equal protection, this applies in this case also because the law didn't apply to all sugary(I hate that expression, actually)drinks equally, therefore the manufacturers of certain drinks were not afforded equal protection, or should I say some manufacturers were held above the law, which amounts to the same thing.

[AndyTheBear]

We are in agreement that the law is stupid and immoral. So in that sense, certainly it SHOULD not be a law. However, I think it unconstitutional for the judiciary to decide what the law SHOULD be, but it is their duty to apply what is IS to the cases before them.

As to the first section of the Fourteenth Amendment applying, I don't think it does. Here is the text:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The context was in regard to protect the rights of former slaves from the states that had slavery. The "equal protection" part I think obviously means that people are protected equally, as oppose to beverages being protected equally. However the part that could be used by the judge in this case (and might have as far as I know) is:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

I am not convinced this could extend to soft drink sizes being limited by a state as being one of the "privileges or immunities of the citizens of the United States", but I am not exactly prepared to argue that it is definitively not...just that it seems a bit of a stretch.

[Tolerance Sucks Rocks]

‘Bout time somebody stopped the Tinpot of Gotham.

Nanny State PING!

[Alamo-Girl]

Thanks for the ping!

[Impy]

JUSTICE LIVES

[SunkenCiv]

Thanks blam.