Mayor Bloomberg has vowed to fight a judge's order that thwarted his controversial ban on supersized sodas.
But Bloomberg's efforts will likely be futile, attorney Stephen Preziosi told Business Insider.
"Although I think the mayor has a good idea, I don't think he's going to prevail on appeal," says Preziosi, who specializes in civil and criminal appeals.
New York state judge Milton Tingling's withering opinion that came down Monday found the ban on soft drinks larger than 16 ounces "eviscerated" the separation of powers. (He also found the ban, which applied to movie theaters and fast food chains but not grocery stores, was "arbitrary and capricious.")
New York City's board of health — which the mayor appointed — adopted the large soda ban without ever going through the city council.
The judge got it right when he ruled that the board of health exceeded its authority when it adopted the soda rule, Preziosi says. As USA Today reported, the judge ruled the board of health can only regulate food when the public faces "imminent danger from disease."
Bloomberg pushed for the soda ban to combat obesity. "Although it [obesity] is a danger, it's certainly not an imminent danger," Preziosi said. "I think Judge Tingling got it right on the law."
The appeals process in New York typically takes 18 months, but Preziosi said Bloomberg could have the process expedited and get a decision in a matter of weeks. It just probably won't be in his favor.
SEE ALSO: JUDGE: Bloomberg's Soda Ban Would 'Eviscerate' Separation Of Powers
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