An appeals court today dealt another blow to Mayor Michael Bloomberg’s proposed soda ban, calling the controversial regulation “invalid” because it violates “the principle of separation of powers.” 
 
 Writing for the Appellate Division, Justice Renwick also criticized Bloomberg and the Health Department for proposing a ban with giant loopholes, which would exclude colas and energy drinks but allow milkshakes and fruit juices. Similarly businesses like delis and restaurants were prevented from hawking sugary beverages but 7-Elevean could still sell its signature Big Gulp. 
 
 The judicial panel said those inconsistencies go “beyond health concerns, in that it manipulates choices to try to change consumer norms.” 
 
 In March, a lower court judge first rejected the ban that stropped city restaurants, delis and other businesses from selling large sugary drinks, just a day before it was scheduled to launch. 
 
 Manhattan Supreme Court Justice Milton Tingling slapped Bloomberg and his Board of Health for overstepping their bounds this spring. 
 
 Today the four-judge Appellate Division panel agreed. 
 
 “Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority,” Justice Dianne Renwick wrote in the unanimous ruling. 
 
 The judges said legislature should decide the issue. 
 
 Mayor Bloomberg called the decision “a temporary setback,” in his crusade to reduce obesity in the Big Apple, adding that he planned to submit an appeal to the state’s highest court. 
 
 A diverse group of organizations from the American Beverage Industry to the Hispanic Chamber of Commerce sued last fall claiming the 16-ounce cap rule “imposed social policy by executive fiat.” 
 
 A spokesman for the ABA said, “We are pleased that the lower court’s decision was upheld.” 
 
 The panel’s opinion echoed Judge Tingling’s comment that Mayor Bloomberg was heavy-handed in the process. 
 
 “Despite the City’s argument to the contrary, the Board did not bring any scientific or health expertise to bear in creating the Portion Cap Rule,” Justice Renwick wrote today. “Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes.” 
 
 In a statement blasting today’s ruling, Bloomberg noted that since the ban was shot down in March “more than 2,000 New Yorkers have died from the effects of diabetes.” He said that both diabetes and obesity “are disproportionately linked to sugary drink consumption.” ||||| Benjamin Lesczynski, 8, of New York, takes a sip of a ''Big Gulp'' while protesting the proposed ''soda-ban,'' that New York City Mayor Michael R. Bloomberg has suggested, outside City Hall in New York July 9, 2012. 
 
 NEW YORK New York City Mayor Michael Bloomberg's controversial plan to keep large sugary drinks out of restaurants and other eateries was rejected by a state appeals court on Tuesday, which said he had overstepped his authority in trying to impose the ban. 
 
 The law, which would have prohibited those businesses from selling sodas and other sugary beverages larger than 16 ounces (473 ml), "violated the state principle of separation of powers," the First Department of the state Supreme Court's Appellate Division said. 
 
 The decision, upholding a lower court ruling in March that struck down the law, dealt a blow to Bloomberg's attempt to advance the pioneering regulation as a way to combat obesity. Beverage makers and business groups, however, challenged it in court, arguing that the mayoral-appointed health board had gone too far when it approved the law. 
 
 A unanimous four-judge panel at the appeals court agreed, finding that the board had stepped beyond its power to regulate public health and usurped the policy-making role of the legislature. 
 
 In particular, the court focused on the law's loopholes, which exempted businesses not under the auspices of the city's health department and left certain drinks, such as milk-based beverages, unaffected. 
 
 As a result, grocery and convenience stores - such as 7 Eleven and its 64-ounce Big Gulp - were protected from the ban's reach, even as restaurants, sandwich shops and movie theaters were not. Meanwhile, milkshakes and high-calorie coffee drinks like Starbucks' Frappucinos would have remained unfettered. 
 
 "The exceptions did not ... reflect the agency's charge to protect public health but instead reflected the agency's own policy decisions regarding balancing the relative importance of protecting public health with ensuring the economic viability of certain industries," Justice Dianne Renwick wrote for the court. 
 
 In a statement, Bloomberg said the decision was a "temporary setback" and vowed to appeal to the state's highest court, the Court of Appeals. If the court declines to hear the city's appeal, the case would come to an end. 
 
 Bloomberg also said that more than 2,000 New Yorkers had died from diabetes since March 12, when the law was struck down just one day before it was to take effect. 
 
 The proposed ban, the first of its kind, drew national attention, as public health advocates praised the plan while critics decried Bloomberg for trying to create a "nanny state." 
 
 A spokesman for the American Beverage Association, an industry group that served as the lead plaintiff in challenging the law, said, "With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City." 
 
 VICTORY FOR DRINK MAKERS 
 
 During his three terms, Bloomberg has made public health a signature issue, prohibiting smoking in restaurants, bars and parks; banning trans fats; and requiring chain restaurants to post calorie counts. 
 
 He is set to leave office at year's end, and it remains unclear whether his successor will take up the sugary soda issue. City Council President Christine Quinn, a leading Democratic candidate, opposed the ban, while Public Advocate Bill de Blasio, another Democratic candidate, said he supports the law. 
 
 Other Democratic candidates, including William Thompson Jr and Anthony Weiner, did not immediately respond to requests for comment. 
 
 In its decision, the appeals court emphasized that it was not expressing an opinion on the "wisdom" of regulations curtailing large sodas, "provided that they are enacted by the government body with the authority to do so." 
 
 Asked whether Bloomberg might now seek to pass legislation through the City Council, a mayoral spokeswoman said, "The route that we have gone is through the Board of Health." 
 
 The ruling is a victory for companies like Coca-Cola, PepsiCo and Dr Pepper Snapple, which argued that the law would do little to address obesity while imposing unnecessary costs. The restaurant industry and several business groups also had filed papers in support of the lawsuit. 
 
 State Supreme Court Justice Milton Tingling struck down the law in March. At the time, Bloomberg said the ruling was "totally in error" and expressed confidence that the city would prevail on appeal. 
 
 (Reporting by Joseph Ax; Additional reporting by Martinne Geller, Jessica Dye and Edith Honan; Editing by Gerald E. McCormick, Kenneth Barry, Noeleen Walder and Bernard Orr)
– New York, your justice has been served—now would you like fries with that? A state appeals court has upheld the New York Supreme Court's ruling to strike down Mayor Michael Bloomberg's soda ban, finding that the prohibition on vendors selling 16-ounce-plus sugary drinks "violated the state principle of separation of power," Reuters reports. The decision was unanimous among the Appellate Division's four judges. "Like Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority," they wrote in their ruling, per the New York Post.