NYC attorneys begin fight for big-soda ban

Andrea Herbert attends a protest billed as the

Andrea Herbert attends a protest billed as the `'Million Big Gulp March" in lower Manhattan in opposition to Mayor Michael R. Bloomberg's proposal to prohibit licensed food service establishments from using containers larger than 16 ounces in New York City. (July 9, 2012) Photo Credit: Getty Images

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Appealing a ruling that nixed the supersized-soda ban, New York City lawyers duked it out in court Tuesday with a coalition of businesses that oppose the controversial plan.

The attorneys for the city argued before four state Appellate judges, contending the health department had the legal mandate to enact the law.

"This has been settled in decades of case law that shows the department has the authority," said Fay Ng, the senior counsel.

Under the plan, which was approved in September but struck down by a judge in March, any location that receives a letter grade from the health department would be barred from serving sugary drinks in containers larger than 16 ounces.

In March, Judge Milton Tingling sided with the American Beverage Association and other groups that sued the city.

One of the judges questioned Ng on whether the health department was overstepping its bounds by focusing on sodas in its fight against obesity. Ng argued that it was no different from other bans it has done in the past.

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"There may not be [judicial precedent] just like when the board of health banned lead paint . . . or had calorie counts," she said.

Rick Bress, the attorney representing the plaintiffs, said the health department crossed the line and didn't factor in that small businesses that would be hurt by its ban.

There is no set date as to when the Appellate Court will make its decision.

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