UPDATE 1-Beverage group, businesses sue NYC over sugary drink ban

(Adds comment from mayor's spokesman, details from lawsuit)

By Joseph Ax

NEW YORK, Oct 12 (Reuters) - Soft drink makers and a restaurant group filed a lawsuit on Friday seeking to block New York Mayor Michael Bloomberg's upcoming ban on large sugary drinks.

The mayor's Board of Health overstepped its authority when it passed the regulation, the lawsuit said. The power to approve such legislation lies solely with the city council, it said.

The plaintiffs include the American Beverage Association and the National Restaurant Association, along with a number of unions and pro-business groups.

The ban, the first of its kind in the United States, outlaws the sale of sugary drinks larger than 16 ounces everywhere in New York City except grocery and convenience stores. It is the latest step in Bloomberg's quest to combat obesity. Previously, he has required chain restaurants to post calorie counts on their menus and banned trans fats citywide.

The soft drink and restaurant industries have said the ban is an infringement of personal freedom, and cited polls that show a majority of New Yorkers oppose the restriction.

A legal fight has been expected ever since Bloomberg proposed the ban in May.

The lawsuit, filed in state court in Manhattan on Friday, asks the court to bar the law before it can take effect next March.

"This case is not about obesity in New York City or the motives of the Board of Health in adopting the rule being challenged," the lawsuit said. "This case is about the Board of Health, appointed by the mayor, bypassing the proper legislative process for governing the city."

The lawsuit also claims the rule is "arbitrary and capricious," because it applies only to some businesses and targets only certain types of beverages.

"Delis and hotdog stands are barred from selling a 20-ounce lemonade, but the 7-Eleven a few feet away remains free to sell Big Gulps," the lawsuit said.

Several legal experts, however, have said they expect any court challenge to face an uphill battle, given the health department's power to regulate eateries in the city.

Marc LaVorgna, Bloomberg's chief spokesman, said the "predictable, yet baseless" lawsuit will put an even greater spotlight on an obesity epidemic that kills 6,000 New Yorkers a year.

City officials have cited public health statistics showing that 58 percent of the city's adults and nearly 40 percent of public school students are obese or overweight.

The ban defines a sugary drink as a beverage that includes sugar or another caloric sweetener, has more than 25 calories per 8 ounces, and does not contain more than 50 percent of milk by volume.

The case is New York Statewide Coalition of Hispanic Chambers of Commerce et al. v. The New York City Department of Health and Mental Hygiene et al., 653584/2012, New York State Supreme Court, New York County.

(Reporting by Joseph Ax; Editing by Matthew Lewis, Eddie Evans and; Jan Paschal)


Reuters Messaging: joseph.ax.thomsonreuters.com@reuters.net))