Nearly five months after a last-minute ruling by a NY State Supreme Court judge took the fizz out of New York City Mayor Michael Bloomberg’s plan to ban the sale of large sodas in city-regulated stores and restaurants, the ban has once again been dealt a blow, as an appeals court panel agreed that the city overstepped its authority.

The ban would have forbidden the sale of full-calorie sodas (and other, but not all, sugary drinks) larger than 16 oz. in restaurants, delis and other businesses regulated by the city’s Board of Health.

The notion behind the ban is that soda consumption is a leading contributor to obesity and by limiting sizes available to area consumers, it would ultimately reap a public health benefit. Opponents of the regulation called it both overreaching and inconsistent, as it allows for the sale of fruit juice drinks, which may contain as much, if not more, sugar than some banned sodas.

In March, as the clocked ticked down for the ban to be put in place, a state Supreme Court ruled against the city, calling the ban “arbitrary and capricious.”

“It applies to some but not all food establishments in the city,” wrote the judge at the time. “It excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories.”

The city appealed the decision to and in June made their case before a panel of the New York State Supreme Court’s Appellate Division, First Department. At that hearing, the appeals panel brought up many of the same concerned raised by the lower court.

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

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

And so it came as little surprise today when the appeals panel unanimously upheld the lower court’s ruling.

“The Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the portion cap rule to curtail the consumption of soda drinks,” writes Justice Renwick in the appeals court ruling. “It therefore violated the state principle of separation of powers.”

And of course, because New York City has nothing more to worry about, it plans on appealing the case to the New York State Court of Appeals in Albany.

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