By Daniel Wiessner
ALBANY N.Y.(Reuters) - An attorney for New York City has asked the state's top court to revive a ban on large sugary drinks, saying the city's health department has the power to ban any products, even hamburgers, that pose a health risk.
Lower courts have overturned the ban, which would prohibit some businesses from selling sugary drinks larger than 16 ounces, because it was adopted by the health department and not the elected City Council.
The city on Wednesday got its final chance to have the ban reinstated at the Court of Appeals in Albany.
Chief Judge Jonathan Lippman asked the city's lawyer, Richard Dearing, what else could be banned by the health department.
“What if a study said hamburgers are bad and there’s not one good thing about them?” he asked. “You can ban the triple deckers, all three patties?”
Dearing responded that the city could indeed ban hamburgers, or at least cap their size, if it had science on its side.
The court accepted about a dozen friend-of-the-court briefs in the high-profile case. The plaintiffs were backed by the NAACP and other civil rights groups, members of the New York City Council and business groups, including the U.S. Chamber of Commerce.
Two groups of law professors and a coalition representing health officials from cities across the country were among those who supported the city.
The soda ban, Dearing said, was based on studies that show sugary drinks to be a leading driver of obesity.
“The category of (banned) products is based entirely on scientific evidence,” Dearing said.
Representing the trade groups suing the city was Richard Bress, who distinguished the ban from other city regulations, such as a calorie-count requirement or restaurants using trans fats.
“For the very first time, a board has taken it upon itself to intrude on people’s personal decisions; how much you want to eat, what you want to eat," said Bress, of the law firm Latham & Watkins.
The case is New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, New York State Court of Appeals No. 134.
(Reporting by Daniel Wiessner; Editing by Ted Botha and Gunna Dickson)