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June 5, 2012

Supersized Sodas To Be banned In The Big Apple?

Seller Beware: Consumer Protection Insights for Industry

Those of you who enjoy sipping on a 20 oz. soda at Yankee Stadium may soon be forced to downsize. Citing an increasing population that is overweight, New York City officials announced on May 31 their intention to pursue a ban on certain supersized soda and other sugary beverages sold at restaurants, delis, food carts, movie theaters and sporting venues located in the Big Apple. The first-of-its-kind restriction, which must be approved by the City's Board of Health, could go into effect as early as March 2013. Violators would face $200 fines.

The ban, which does not apply to supersized sodas or sugary drinks sold in convenience or grocery stores, and does not restrict the sale of supersized diet sodas, alcohol beverages, fruit juices, lattes or dairy-based drinks, has been hailed by supporters and roundly criticized by opponents. On the one hand, supporters claim that the ban will have an impact on the obesity problem and could pave the way for similar legislation throughout the country (much like Gotham's 2003 ban on smoking in public restaurants). In stark contrast, fast-food and soda companies have issued statements criticizing the ban as "narrowly focused and misguided" and taking away the consumers choices "about the beverages they purchase."

The supersized soda ban is the latest attempt by New York City officials to implement progressive public health initiatives in the City. Residents of the Big Apple have already faced bans of trans fats from restaurants and smoking at City parks and beaches. The City has also implemented a calorie labeling law and recently unveiled an anti-obesity advertising campaign.

The City has leeway to implement laws that protect the public health and safety, so long as the laws could have an actual health benefit and are not arbitrary or overbroad. Given that the ban has not been approved by the City's Board of Health, it is too early to tell if any legal challenges will be launched against the City's ban, whether on grounds that the ban does not further public health or is otherwise arbitrary in its scope.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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