In NY Statewide Coalition v. NYC DOHMH (NY Sup. Ct. NY Cty. Index 653584/12), the court enjoined the enforcement of NYC Health Code § 81.53 (which prohibits the sale by certain vendors of “sugary drinks” exceeding 16 fluid ounces).
In addition to finding that the Rule violated the separation of powers doctrine, Judge Tingling found that it was arbitrary and capricious. He wrote:
The Rule is … fraught with arbitrary and capricious consequences. The simple reading of the Rule leads to … uneven enforcement even within a particular City block, much less the City as a whole. Furthermore, … the loopholes in this Rule effectively defeat the stated purpose of the Rule. It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.