The city will take one last shot Wednesday at making former Mayor Michael Bloomberg's big-soda ban a reality.
The city's corporation counsel will make its case at the state Court of Appeals in Albany to overturn the decisions of two lower courts who ruled in favor of the soda companies and said the ban, which was supposed to go into effect last year, was "arbitrary and capricious."
Rick Hills, a professor of local government law at NYU Law School, said the the health department was hindered in the lower courts because of the advertising campaign by soda companies, but the city does have enough legal background to make a solid case.
"The whole public relations attack against [the health department] is about paternalism, and that has construed the courts against them but the law is still on their side," he said.
Although Mayor Bill de Blasio has opposed several of Bloomberg's other controversial proposals and policies, such as the NYPD's use of stop and frisk, he has support for the cap on sugary drinks, which would bar any restaurant, deli or establishment that gets a health letter grade from serving sugary drinks in containers greater than 16 ounces.
Diet sodas and dairy products are excluded from the ban, which doesn't affect supermarkets since they are regulated by the state.
A State Supreme court judge ruled in March 2013, that the ban was unconstitutional because it focused only on sodas and didn't apply to all food stores. The judge also expressed concern that the ban violated the separation of powers between the executive and legislative branches of the city.
Last July, a city appeals court upheld the initial decision.
The city will argue that there is strong enough legal basis for the ban because the health department has the right to enact such measures to protect New Yorkers' well being.
"The [health] board's rule limiting the cup size for sugary drinks sold in restaurants and similar businesses in the city is a reasonable exercise of that authority to address the special risks posed by sugary drinks in the growing obesity epidemic," the city's law department said in a statement.
The American Beverage Association, who filed the lawsuit after the city approved the measure in September 2012, however, said they are confident that the court's decision will be upheld again.
"We look forward to a final resolution of this issue, as the soda ban would have a negative impact on businesses throughout the city," the ABA said in a statement.
There is no timetable for when the Court of Appeals will make its decision.
Hills, who wrote an amicus brief in favor of the city's appeal, noted that the city defeated lawsuits filed by restaurants who were against the calorie labeling law in 2009.
"If obesity is a chronic disease and a calorie count [labeling]is a way of countering that disease then why isn't this portion cap legal?" he asked.