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Court hears appeal on New York City's drink-size ban

Four-judge panel's questions seemed to signal that it would uphold the injunction banning drinks larger than 16 oz.

An appeals court panel in New York has heard New York City's appeal of a court ruling earlier this year enjoining the city from implementing a ban on large-sized, sugary beverages, and court observers said the four-judge panel's questions seemed to signal that it would uphold the injunction. 

The rule was developed by the city's department of health, and the judges had questions concerning the department's authority and the rule's legal and scientific underpinnings.

Justice David Friedman said the city sought to exercise "unprecedented authority" that could lead to regulations dictating not only portion sizes but "the number of donuts" or "the number of scoops of ice cream" a person could order.

The rule would have prohibited delis, restaurants, street carts, movie theaters and sports stadiums from serving sugary drinks in containers larger than 16 oz. if those drinks had more than 25 calories per 8 oz.

It would not have applied to convenience or grocery stores or drive-thrus, even the drive-thrus of affected restaurants.

The ban was adopted by the health department last year (Feedstuffs, Oct. 1, 2012) and was to become effective on March 12. However, a coalition of beverage, restaurant and theater interests filed a lawsuit requesting an injunction (Feedstuffs, Oct. 22, 2012), and the injunction was granted by a lower court in March (Feedstuffs, March 18).

The city then appealed (Feedstuffs, April 1), and both city health commissioner Thomas Farley and Mayor Michael Bloomberg have said they are confident that the ban will be upheld.

The appeals court did not indicate when it might rule.

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