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Originally published Wednesday, February 20, 2013 at 7:39 AM

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Critics, city debate delaying NYC soda-size rule

It's up to a judge whether a first-of-its-kind size limit on sodas and other sugary drinks will take effect in three weeks.

Associated Press

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NEW YORK —

It's up to a judge whether a first-of-its-kind size limit on sodas and other sugary drinks will take effect in three weeks.

Beverage-makers and sellers, seeking to hold off enforcement while a lawsuit plays out, faced off in court Wednesday with city officials. Manhattan state Supreme Court Justice Milton Tingling didn't immediately rule or say when he would.

With the regulation set to go into effect March 12, the beverage industry and eateries say businesses could end up squandering money complying with the regulation if a court ultimately throws it out.

"What's the rush? Is the city so worried that one more person is going to gain another pound, or two pounds, or 10 pounds, that they have to come out with their enforcement now?" asked Steven Molo, a lawyer for groups representing Korean-American deli owners and Hispanic-owned eateries.

The city, meanwhile, says there's no time to waste in launching what officials and health experts call a novel effort to lessen obesity with huge costs of its own, measured in health problems and hospital bills.

The restriction "will have significant public health effects, and the sooner that happens, the better," city lawyer Mark W. Muschenheim told the judge.

The city Board of Health agreed in September to ban restaurants, delis, movie theaters and many other eateries from selling high-sugar drinks in cups or containers bigger than 16 ounces. The city plans to start enforcing the rule next month but to postpone seeking $200 fines until June.

Citing studies that suggest sugary drinks are a driving factor in the nation's growing girth, city officials portray the restriction as a portion-control tactic that will help people cut calories without stopping anyone who actively wants more soda from buying another.

The opponents say that it's insulting to suggest consumers don't know what they're doing, and that it's unfair to impose a restriction that applies only to some beverages and some establishments. Because of factors including limits on the city's jurisdiction, the rule doesn't cover alcoholic drinks, milkshakes, coffee drinks or unsweetened juices. Nor does it apply to any sugary drinks sold at supermarkets or convenience stores - including the 7-Eleven Big Gulp, which often is Exhibit A in debates about the rise of the supersize.

The business groups say the rule will cost beverage-makers about $600,000 in labeling and other expenses, cut into soda sales that represent about 20 percent of movie theater profits and compel delis and restaurants to make changes ranging from changing inventory to reprinting menus with entree-and-soda deals. They also say eateries affected by the size limit stand to lose business to ones that aren't.

The city calls the claims overstated and says the businesses are getting adequate time to prepare. City lawyers also said Wednesday that restaurants will still be allowed to continue serving 16-ounce drinks in cups that hold slightly more than 16 ounces, in order to leave room at the top.

The critics include heavyweight national beverage, restaurant and movie theater associations, small-business groups and the New York state branch of the NAACP and the Hispanic Federation, an organization of 100 Northeastern groups. The minority advocates say they're concerned that minority-owned delis and corner stores will lose out to grocery chains.

The groups' involvement in the case has stirred some criticism of their own ties to the soda industry, which has given more than $100,000 to the national NAACP and now employs the Hispanic Federation's former president. The groups have called the complaints off-base.

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