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NYC appeals judge's sugary drink ruling

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NEW YORK (MYFOXNY) -

Mayor Michael Bloomberg said a judge's decision to strike down New York City's groundbreaking ban on big sugary drinks is merely a "temporary setback." The city has already begun the appeal process.

Bloomberg spoke Tuesday while visiting a Manhattan diner that is voluntarily complying with the policy. The diner is ditching 20-ounce bottles of soda and reserving 24-ounce to-go cups for iced coffee.

A New York state judge stopped New York City from implementing a ban on the sale of large sweetened drinks.

The city is "enjoined and permanently restrained from implementing or enforcing the new regulations," New York Supreme Court Judge Milton Tingling decided Monday.

Chris Gindlesperger, spokesman for the American Beverage Association issued a statement saying: "The court 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."

The regulations are "fraught with arbitrary and capricious consequences," the judge wrote in his ruling. "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… It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the rule."

For example, a pizzeria, which is licensed by the city's Board of Health, would not have been allowed to sell soda in cups larger than 16 ounces, but a hypothetical next-door 7-Eleven convenience store, which is regulated by the state, would have no such restrictions.

Also, the rule exempts drinks that are more than 50 percent milk. That means the sale of a 20-ounce milkshake, which might have more sugar and calories than a 20-ounce cola, would not be restricted but sale of the soda would be.

The rule also exempts alcoholic beverages, regardless of sugar and calorie content.

The judge also raised several arguments about the Board of Health and the mayor's right to unilaterally create such a ban without action from the City Council. The mayor controls the Board of Health.

The city's top lawyer said he is confident the Board of Health's rule will be upheld.

"This measure is part of the city's multi-pronged effort to combat the growing obesity epidemic, which takes the lives of more than 5,000 New Yorkers every year," Michael Cardozo, the city's corporation counsel, said in a statement, "and we believe the Board of Health has the legal authority -- and responsibility -- to tackle its leading causes."

On Tuesday, the city's Law Department filed a notice of appeal, the first step in the appeal process.

The mayor on Monday said that "special interests" always sue when you "adopt a groundbreaking policy."

"We believe the judge is totally in error in how he interpreted the law, and we are confident we will win on appeal," Bloomberg said. "The Board of Health's limit on the serving size of sugary drinks does not limit anyone's consumption; it just requires them to think about whether they really want more than 16 ounces."

The Associated Press contributed to this report.

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