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Large sugary drinks flow in NYC as officials appeal ruling

By Leigh Remizowski, CNN
updated 4:10 PM EDT, Tue March 12, 2013
STORY HIGHLIGHTS
  • NYC businesses continue to sell large sodas
  • Mayor Bloomberg says appeal will prevail
  • Judge rules measure was laden with exceptions

New York (CNN) -- New York City restaurant owners were back to business as usual on Tuesday, selling pitchers of soda and other super-sized drinks that would have been banned without a judge's 11th-hour intervention.

A citywide ban on the sale of sugary drinks in containers holding more than 16 ounces was set to go into effect Tuesday before state Supreme Court Justice Milton Tingling blocked the city's restrictions on Monday, calling them "arbitrary and capricious."

"It's no harm, no foul for us," said Josh Lebowitz, owner of Brother Jimmy's BBQ in Manhattan. "We'll go back to our old way of doing business."

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In preparation for the expected ban on large sugary drinks at restaurants, fast-food eateries, movie theaters and stadiums in New York City, Lebowitz purchased 1,000 16-ounce cups to replace the 24-ounce ones used to serve soda at his five restaurants.

But after Monday's ruling, Lebowitz says those 16-ounce cups will remain in their boxes.

"We'll hold onto them for the time being," he said. "We're not going to use them."

Tingling's ruling was in response to a lawsuit filed by a group of business associations -- including the National Association of Theatre Owners of New York State and the American Beverage Association, which hailed the decision as a "sigh of relief to New Yorkers and thousands of small businesses in New York City."

The city wasted no time in appealing Tingling's decision.

How New Yorkers feel about big soda ban

"We are moving forward immediately with our appeal," said Michael Cardozo, the city's corporation counsel. "We believe the judge was wrong in rejecting this important public health initiative. We also feel he took an unduly narrow view of the Board of Health's powers."

Mayor Michael Bloomberg touted the sugary drink ban as a step toward eradicating New York City's "obesity epidemic."

"We are confident that we will win [the appeal]," Bloomberg said at a press conference at Lucky's Cafe in Midtown Manhattan, where owner Laki Anagnostopoulos has decided to comply with the city's sugary drink restrictions despite the court's decision.

"It's not about money at the end of the day, it's about making a change," said Anagnostopoulos' son, Greg, adding that the restaurant has eliminated 24-ounce to-go cups and 20-ounce bottles of soda from its menu.

Other businesses were not as ready to comply with the restrictions in the wake of the court ruling.

"We have maintained our position from the beginning that any regulations to eliminate New Yorkers' rights to purchase beverages in sizes of their choice is not in the public's interest," Dunkin' Donuts said in a statement. "With the ban now declared invalid, customers in New York City will find all their favorite beverages in the sizes they want available at Dunkin' Donuts."

Iman Kimel, owner of Frames Bowling Lounge in Manhattan, had a so-called "plan B" for when he was no longer able to offer patrons pitchers of soda -- sell pitchers of juice instead. The high-end bowling alley's chef developed recipes for cranberry-apple and mint, carrot and citrus juices, among other blends.

Ethicist: Health bans and 'sin taxes' can easily backfire

Until the law dictates otherwise, though, Frames will continue to offer pitchers of soda -- which come with a standard birthday party package.

"As long as we can sell soda in larger quantities, we will," said Frames marketing manager Frayda Resnick.

Tingling wrote that his decision was based on the fact that the ban was "laden with exceptions."

In addition, the law would have exempted a variety of retailers, including 7-Eleven, seller of the iconic "Big Gulp" drinks, because it is regulated by the state, not the city.

"The effect would be a person is unable to buy a drink larger than 16 ounces at one establishment but may be able to buy it at another establishment that may be located right next door," Tingling wrote.

Bloomberg said that the city's legislation was aimed only at the businesses that the city has the right to regulate.

"We just think the judge was totally wrong," Bloomberg said, adding that the city can only enact legislation "where we have the right to do it."

CNN's Mary Snow and Melanie Hicken contributed to this report.

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