you're incorrect about Bloomberg. He was overruled by the court because his Dept of Health exceeded its authority to outlaw it.Had he gone to NYC's city council and gotten their vote, the law would have been legal. Another freedom could have been lost.
I have read the concurring and dissenting opinions in the case. Since the court focused on the separation of power issue, and on that basis alone decided that the health department had exceeded its remit, it did not address the hypothetical substantive question of whether the regulation itself would have been enforceable on public health grounds if the city council had adopted it instead. It would inevitably have been challenged by the sugary drink interests, in which case the court would have had to address the underlying issue it previously managed to avoid taking up. Other jurisdictions have avoided the “portion cap” approach taken by NYC, which was plagued with issues noted by the court, not the least of which is it banned sugary drinks larger than 16 ounces in fast food joints but not convenience stores, and instead impose excise taxes on sugary drinks where they are on firmer legal ground. There is a bill currently pending in the NY state senate to do just that. In retrospect, I should have selected a more straightforward example of courts setting aside legislative overreach with respect to laws affecting health, safety, and welfare, and you are correct to distinguish this one.
