In 2008, New York city health officials passed a regulation requiring many chain restaurants to post calories on menus. A federal judge rejected a challenge from the restaurant industry, which argued that the rule violated the First Amendment right to free speech by forcing restaurants to "convey the government's message regarding the importance of calories."
Bennett Gershman, a constitutional law professor at Pace University, argued that the ban on big sugary drinks would run afoul of the U.S. Constitution's Commerce Clause.
Local governments "can't pass laws that do impose burdens on the free flow of commerce between states," he said. "If it is too much of a burden, the Supreme Court says that states can't do it. Only Congress can impose burdens on commerce. States can't."
Gershman suggested the measure would impose a burden by requiring out-of-state companies to produce different size drink containers and offer different services for customers in New York.
But Hills scoffed at that line of reasoning, saying the courts have generally accepted such an argument only in regard to transportation rules that might, for example, prevent some trucks from driving across state lines.
Associated Press writer Jason Keyser in Chicago contributed to this report.
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