It’s been three months since a judge tossed out New York City Mayor Michael Bloomberg’s ban on sugary drinks larger than 16 ounces, calling the regulation “arbitrary and capricious.” Today, a state appeals court panel heard arguments for and against the ban, but it doesn’t look good for Mayor Mike.

The city is asking the panel to overrule the lower court’s decision and allow it to enact the regulation that forbids city-regulated food sellers — delis, movies, fast food eateries, restaurants, stadiums, but not grocery stores — from selling certain sugary beverages in sizes larger than 16 ounces. The mayor believes that limiting the size of sugary drinks will curb the city’s obesity epidemic and ultimately result in lower health care costs for all.

But the lower court sided with opponents who argued that the regulation contains loopholes and exceptions that allow for high-calorie, high-sugar drinks to be purchased at any number of sizes. For example, drinks with at least 70% fruit juice were exempted from the ban, however many such drinks contain as much or more sugar than beverages that would be affected by the ban.

Members of the appeals panel had similar questions for the city.

“Why the limits on some [drinks] and not others,” Justice Diane Renwick asked the attorney representing the Bloomberg administration.

“How about pomegranate juice and blueberry juice?” asked Judge Rosalyn Richter. “What about sugar-infused energy drinks?”

Meanwhile, the city has launched an attempt to make its case to the public, recently launching an ad campaign to highlight the amount of sugar in soft drinks, while Dr. Thomas Farley, the city’s Commissioner of the Dept. of Health and Mental Hygiene posted an op-ed piece on Forbes.com in which he defends the big-soda ban.

“The rule would not prevent anyone from buying or drinking as much as he or she wants,” writes Farley. “Instead it merely caps the size of the container that restaurants use to serve sugary drinks. Because people so often choose the default size, there is every reason to think this rule will reduce consumption and help stem or slow the tide of obesity and, by extension, diabetes.”

The appeals panel’s decision could come as soon as later this month or as late as the fall.

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