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New York soda ban to go before state’s top court

NEW YORK — The battle over big sodas is not yet finished.

Mayor Michael R. Bloomberg’s ballyhooed and much-criticized attempt to limit the size of sugary drinks in New York City is set to be reviewed by the state’s highest court, the Court of Appeals, the city announced Thursday, offering a final chance to salvage a plan that has twice been rejected by judges as improper.

But the fate of the proposal now lies squarely in the hands of Bloomberg’s successor. The Court of Appeals is not planning to take up the case until next year, after Bloomberg is out of office, leaving the decision to pursue the case up to the next mayor.

Bill de Blasio, the Democratic nominee for mayor and the overwhelming front-runner in the polls, had been a consistent and vocal endorser of the soda-size restrictions, in a rare point of harmony with a mayor whose policies he has ferociously criticized. Two months ago, de Blasio said in an interview that Bloomberg was “right on this issue,” adding: “A ban on large sugary drinks is an important part of any public health agenda.”

On Thursday, however, the de Blasio campaign offered an ambiguous response to questions about whether he would press the appeal.

“Bill supports the ban on large sugary drinks; as mayor, he would review the status of the city’s litigation,” a spokesman, Dan Levitan, wrote in an email. He declined to elaborate.

The Republican nominee for mayor, Joseph J. Lhota, said Thursday that, if elected, he would withdraw the city’s appeal, allowing the ban proposal to die.

The small-soda proposal, announced last year, was a signature initiative of Bloomberg’s health-oriented City Hall and prompted debate about the link between sweet beverages and obesity. But the plan proved unpopular with New Yorkers, who bristled at its restrictions, and it was attacked by the soft drink industry, which stood to lose millions if it came to pass.

The industry, along with allies including the local chapter of the NAACP, sued, and persuaded a state judge to throw out the plan on the grounds that it was an unlawful overreaching by the city’s Board of Health. A midlevel appellate court agreed.

Bloomberg and the soft drink industry issued statements Thursday, each saying it was “confident” its side would prevail at the Court of Appeals.

—Michael M. Grynbaum, The New York Times

Door may open for challenge to secret wiretaps

WASHINGTON — Five years after Congress authorized a sweeping warrantless surveillance program, the Justice Department is setting up a potential Supreme Court test of whether it is constitutional by notifying a criminal defendant — for the first time — that evidence against him derived from the eavesdropping, according to officials.

Prosecutors plan to inform the defendant about the monitoring in the next two weeks, a law enforcement official said. The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said.

Meanwhile, the department’s National Security Division is combing active and closed case files to identify other defendants who faced evidence resulting from the 2008 wiretapping law. It permits eavesdropping without warrants on Americans’ cross-border phone calls and emails so long as the surveillance is “targeted” at foreigners abroad.

It is not yet clear how many other such cases there are, nor whether prosecutors will notify convicts whose cases are already over. Such a decision could set off attempts to reopen those cases.

—Charlie Savage, The New York Times