In 4-2 decision, the NY Court of Appeals affirmed lower court rulings and struck down what is likely New York City's last attempt (at least in court) to impose ban on sugared bevs over 16-oz. Majority of Appeals Court "largely ignored the merits of the ban" and ruled on grounds that NYC Board of Health overstepped its bounds and "engaged in policy-making, and not simply health regulations," noted AP. This decision was "beyond its regulatory authority," wrote court, which also noted Board of Health clearly "wrote the Portion Cap Rule without benefit of legislative guidance." Legislative approach to get ban implemented is likely the next route Mayor Bill de Blasio will pursue as most legal experts said Supreme Court would be unlikely to accept case challenging a local gov't decision. That road won't be any easier for de Blasio, as "a majority" of city council members "voiced opposition to the proposal, including the council's leader, Speaker Melissa Mark-Viverito," noted Wall Street Jnl. Tho Speaker and Mayor have been strong allies on most issues, she told WSJ: "I've been disappointed that de Blasio wanted to continue that route" and impose ban. "I think there are other ways that we can tackle clearly what is a health concern and a health issue."

IBWA Supports Increased Labeling Info for Bottled Water Trio of congressmen this week intro'd legislation that would mandate that bottled-water marketers offer consumers uniform info about quality and safety of products. Bottled Water Quality Information Act (HR 4978) intro'd by Reps Renee Ellmers (R-NC), Jim Matheson (D-Utah) and Richard Nugent (R-Fla) requires bottled water producers to annually prepare, and make available upon request, quality report that includes type of water source, treatment methods used by bottler, and test results for microbiological, physical, chemical and radiological quality. Bipartisan bill drew endorsement from lobbyist Int'l Bottled Water Assn, which argues that it "codifies the bottled water industry's current efforts to ensure transparency and continues our commitment to have the highest quality standards," in words of assn prexy/ceo Joe Doss. It also would avert patchwork quilt of state and local labeling requirements.

With Controversy Seemingly Waning, CSPI Stokes Fires Again with Call for Stiffer Labeling, Caffeine Limits With energy drink critics having had trouble marshaling conclusive data that category poses safety threat to consumers and debate appearing to be ebbing in recent months, gadfly CSPI is stirring pot again, demanding that FDA require warning label to notify consumers of risk of heart attack, convulsion and other adverse reaction to energy drinks, while also limiting caffeine content to 71 mg per 12-oz, in line with maximum agency views as safe in cola-style bevs. As in past, CSPI (letters stand for Center for Science in the Public Interest) cited adverse-incident data, while acknowledging that such data don't establish causal connection.  

Essentia, Seattle-based high-alkalinity bottled water whose momentum at retail has enabled it to draw broad interest from prospective investors, appears to be close to pulling in new institutional round of $10 mil or more, multiple sources said. Capital raise is being handled by Silverwood Partners, with First Beverage Group among private-equity shops whose names have surfaced as in running to participate. BBI variously hears that round has been completed or is in final stages. Recall that, in alkaline-water category that's drawing in numerous new players, Essentia seems to have vaulted to forefront in momentum after strong earlier challenge by Aquahydrate sputtered. Essentia founder Ken Uptain spent years building brand deliberately in natural channel, but over past year he's recruited professional bev team and is now rolling out aggressively to general market and enlisting key DSD allies in target markets. No comment from Essentia, First Beverage or Silverwood. More word as we hear it.  

Post Foods has become latest cereal maker to try to recapture lost consumption occasions by taking plunge into RTD bevs, offering Post Goodness-To-Go breakfast shake line that contains 15 g of protein per 11-oz carton. Dairy-based line also contains 3 G of fiber and 24 vitamins and minerals, but clocks in at modest 170 calories per box, thanks in part to sweetener blend of agave, monk fruit and stevia. It breaks in 3 flavors, Tahitian Vanilla, Dutch Chocolate and Mocha, without artificial flavors, colors or sweeteners. Protein is derived from blend of low-fat milk, milk protein concentrate, whole grain oats and soy protein isolate. Label graphics highlight the "Go" in "Goodness" to echo the "To-Go" below it. New line will initially go out in grocery-oriented 4-packs of the resealable cartons. Tho launch reps departure for Parsippany, NJ, co, it was quick to note that co started a century ago with a cereal bev, Postum. "We're excited to get back to our roots," said Mark Izzo, vp of research, development & innovations. Parent co Post Holdings has been on diversification push, picking up Joint Juice/Premier Nutrition last Aug and just this month closing on Michael Foods, as simple bowl of cereal in morning proves more than many consumers can handle with their current lifestyles.

Are Cereal Makers' Bevs Candidates for DSD? Kellogg Miscue at NIDA Suggests It May Be Arduous Road Since cereal makers' lines generally are shelf-stable, approachably priced and benefit from millions of dollars of brand awareness behind core brand, they might seem natural fit for DSD channel to reach on-the-go consumers at moment of hunger. Certainly, DSD houses have been receptive to shelf-stable entries under household names like Nesquik, Sunny D and V8. But history shows that DSD model is surprisingly difficult hurdle for warehouse-oriented companies: protein drink marketers challenging Muscle Milk under brands like Labrada and EAS Myoplex stumbled badly in mastering channel before ultimately retreating, and it's similar stretch for cereal marketers. Case in point: looking to broaden presence of its own on-the-go bevs, Kellogg last month pitched influential alliance of Northeast-region DSD shops under NIDA umbrella. Word is, pitch for Kellogg's To Go line of plastic-bottle breakfast shakes was non-starter, with Kellogg reps unprepared to answer even basic questions about current distribution mix and how DSD might be integrated into it. Such fumbles seem to have been familiar occurrence at group over years, as food and nutrition-channel cos attempt to crack alien channel.  

Having just hit 2d anniversary, Hawaiian-sourced Waiakea Hawaiian Volcanic Water is makin' push beyond its base in southwest quadrant of US via dual pitches as premium lifestyle brand, on one hand, and naturally alkaline water on other. Brand recently hit Sprouts shelves, said founder Ryan Emmons, whose family has roots in both Hawaii and Calif. By now, Waiakea is operating in 12 states, including newer markets in Midwest and East Coast. It's adding UNFI warehouses in variety of markets, but seeking DSD options in targeted markets like SF, LA, NY and Miami. Key objective for later this year or early 2015 will be to crack foodservice channel. Among efforts to stand out at retail, co has enlisted noted Hawaiian floral designer Sig Zane to design striking limited-edition design, with motifs similar to apparel and other items that have won him following in Hawaii and Japan.

In market that's awash in alkaline brands - some of them attaining that status via electrolysis or baking soda - Waiakea boasts of being naturally alkaline (8.8 pH) and containing naturally occurring electrolytes that can be better absorbed by body, thanks to being filtered by porous volcanic rock surrounding pristine source some 2,500 miles from nearest industrial land mass. But Emmons said he's making sure not to make outlandish claims of some rivals, and won't be surprised if FDA undertakes crackdown on segment sometime in future. Workhorse packs are half-liter bottle, at $1.49-1.79, and liter bottle at $2.49-2.79. Brand is based in LA area; other key member of team is sales prexy Garrett McAllister. Info at WaiakeaSprings.com.  

Celsius Holdings is lookin' to have its own Vitaminwater-style 50 Cent moment, product-wise. Florida-based marketer of "negative calorie" Celsius bevs has enlisted singer and brand endorser Flo Rida to launch eponymous pre-workout powder under name Flo Fusion, due out late this summer. Similarly to core bev line, berry-flavored Flo Fusion powder contains no sugar, preservatives or artificial colors and flavors, and is low in sodium, and is supported by clinical evidence that it helps burn 100 calories or more per serving, boosts metabolism, reduces body fat and increases endurance, Celsius execs said. It will go out at SRP of $49.99 per 40-serving canister. Item flows out of endorsement deal signed this past Mar with Fla-based singer and D3M Licensing Group, and already is being hawked to his 24 mil social media followers. Flo's been on media circuit, too, landing segments on Miami TV stations and national ESPN programming. Rapper 50 Cent, of course, co-launched popular Vitaminwater sku that helped usher in trend of having celebs collaborate on entries bearing their brand.  

 Tho Coca-Cola generally is staying mum on matter, torrent of online consumer abuse about Vitaminwater reformulation to stevia sweetener hasn't seemed to abate a few weeks into new versions bleeding out into market. Whether KO really has a New Coke-style problem on its hands remains unclear: scores of Facebook commenters have been pleading for it to return to the old formula, in emphatic and often intemperate language, but brand's consumer base totals millions and it may well be that silent majority is happy enough with New Vitaminwater. Still, reading the comments, it's possible to draw some conditional conclusions about state of American consumer, relevant beyond Vitaminwater itself:

Maybe not so many shoppers really care about the sweetener. (Come to think of it, they're not buying into the notion that VW is nutritional, either.) It's sometimes presumed that shoppers on noncarb side have moved on from sodas out of health concerns, and in this case, Coke seems to have undertaken reformulation - basically dropping crystalline fructose, which is a variant of HFCS, for all-natural stevia - in hope of faring better at natural and higher-end retailers like Whole Foods, and the more health-conscious consumers who shop there. If so, Coke has taken high road with brand that's still important to it and that certainly needs a shot in the arm in the face of 20% sales declines. Could it be that most shoppers just don't care, to paraphrase the Eef Barzelay song? That certainly might explain the great success that artificially sweetened Sparkling Ice has enjoyed at VW's expense. Those threads are capsulized in comment this week from poster who identifies herself as Claire Armstrong: "Why the hell would you put stevia in MY vitamin water when you have the zero? Energy vitamin water is all I drink. Everyday. Ever since it came out. I don't drink it because it's healthy. I drink it because I like the taste. WTF??? Obviously, you're counting on the fact that knuckleheads will read the label, see 'stevia,' not see there's still a lot of sugar in it, and buy it because they think it's healthy. Meanwhile, I can no longer drink it." (This post seems also to reflect another current truth: how many shoppers think like marketers. Perhaps Armstrong is a marketer.)

Some consumers think stevia is an artificial sweetener. In our world, there's been buzz about stevia as an all-natural silver bullet for bevs' sweetener dilemma for well over a decade, but the VW posters' comments make it clear there are substantial numbers who haven't gotten that memo yet. This from poster named Beth Bischof this week: "Just found a gas station that has the old delicious vitamin waters!!! No disgusting artificial sweetener!!! Tastes soooooo good!!! Bought a bunch!" Lots more consumers can be found on Facebook with similar misunderstanding about stevia. Among that group, any benefit VW hoped to gain seems totally lost. And if stevia still strikes some consumers as artificial, what do those consumers think of other natural sweeteners - like erythritol - that were given names that sound even more like a chemical?

Tho Coca-Cola takes pains to distance itself from its acquired new-age brands, consumers know. That was clear a coupla years back when some Honest Tea consumers, indignant over Coke's opposition to Calif's GMO proposition, boycotted Honest Tea. Apparently that close attention to corporate connection isn't limited to lunatic fringe. Even Vitaminwater shoppers like Maureen Breslin Kruse have figured out tie: "Clearly, Coke doesn't want my daily patronage. I will boycott all other Coke products as well. Glaceau was a good company - Coke bought it and ruined it. This is as dumb as 'New Coke' was."

Energy drink category volume increased 6.3% last 4 wks in convenience stores thru Jun 7, per latest Nielsen figures reported by Wells Fargo Securities' Bonnie Herzog. That's down from gains of 7.6% for 12 wks and 11.1% for 52 wks in c-stores. Energy drink pricing was flat in latest period, which included Memorial Day weekend, up from -0.4% avg price decrease last 12 wks. Monster Beverage slowed from 10%+ gain pace last 12 wks to 6.8% gain in c-stores for those 4 wks. Monster prices up 0.7% last 4 wks, in-line with its 12-wk trends. "Despite a somewhat soft period for the category, we remain encouraged by the solid performance of the majority of Monster's lines and ongoing share gains" in the category, said Bonnie. While MNST core brands continue to perform solidly, its Rehab has still struggled as Bonnie and other analysts, including Nik Modi of RBC Capital Markets, have noted. "Our channel checks continue to show strong double-digit growth from Monster's core Green can offering, but Rehab remains a drag," wrote Nik. MNST is taking steps such as getting better shelf placement in c-stores to better align Rehab as a tea brand. Moves like this "should ultimately lead to a recovery of this brand's sales," said Bonnie. Recall that at one point a coupla years ago Rehab was innovation star at co, tho that's been eclipsed lately by Zero Ultra and Muscle Monster sublines.

Red Bull volume improved to +4.7% in c-stores last 4 wks (vs 3.5% gain last 12 wks) with slight (-0.1%) price decrease. That still means it lost a bit of share. Rockstar volume rose 5.7% last 4 wks, in line with its 12-wk gain pace, while avg price was down 3.5%. Coca-Cola energy brands (NOS, Full Throttle) gained 11.8% last wks, slower than its near-18% for previous 12 wks, but avg price was up 3.2% vs 1.7% increase for 12 wks, so it got strong gain on solid price realization. PepsiCo (Amp) energy volume was up 1.3% vs 1.2 decrease last 12 wks, but its pricing continued to drop, down -1.3% for latest period and -2% for 12 wks.

CSDs Get Some Pricing, but Pay in Volume Avg prices for carbonated soft drinks rose a solid 4.6% in c-stores in latest month (incl Mem Day weekend) but volume trends worsened to -4.3% vs 2.9% decline previous 12 wks. Each of Big 3 suppliers enjoyed solid CSD pricing in impulse channel: PEP +4.4%, KO +3.5%, Dr Pepper Snapple +6%. But they paid for that in volume weakness. DPS took biggest hit last 4 wks, with 9.6% drop (more than double its 12-wk decline) while PEP and KO volume was off 1.5% and 3% respectively. Tho amid some investor skepticism DPS has maintained consistently over past year that its 10-calorie DPS 10 platform represents way to capture consumers who might be leaving CSD category, at Wall Street Smarts conference hosted yesterday by Beverage Digest, DPS marketing exec Jim Trebilcock acknowledged that co now recognizes those sublines won't amount to "home run." C-store trends seem to bear that out.  

Sold-out NY edition of Fancy Food Show opens in a week at city's Javits Center, with anticipated 28K visitors arriving to sample high-end foods/bevs. Show operated by Specialty Food Assn runs Jun 29 to Jul 1. Tho winter edition usually held in SF has long been mainstay of expo calendar for premium brands, NY edition had earlier had its detractors, who said it drew more from gift-basket crowd than legit retailers, and shift to Washington DC during renovations of Javits Center didn't do much to improve image. But show seems to have enjoyed new energy since return to NY a year ago, and upcoming one will be largest since inaugural event in 1955, featuring 2,730 exhibitors, including 1,500 from US. Retail chains whose buyers have frequented show aisles have included Whole Foods, Kroger, Dean & DeLuca, Gourmet Garage and Mollie Stone's Markets, as have numerous restaurant owners. Info at FancyFoodShows.com.  

 Calypso Lemonade, which has trekked thru quite a few NY distributors looking for right fit, has abandoned plans to launch with Phoenix Beehive before it got started, moving instead to smaller Preferred Beverage house. Move represents a bit of a comeback for Preferred, which had handled rival lemonade Hubert's until owner Monster Beverage decided to unite the brand with its core energy line at Big Geyser. By now, Milwaukee-based Calypso has moved thru Dora's, North Shore Bottling, Phoenix Beehive and perhaps others as it tries to find footing in country's biggest market. With broad consumer base, Calypso could pick up some of inner-city juice biz once owned by Mistic and now being worked aggressively by Ralph & Charlie's juice line, from another NY distributor, SKI . . . After long run at Exclusive Beverage, Australian-based Balance Water has moved its unsweetened bottled water with Australian floral essences to Dora's Naturals. Neither side offered rationale for breakup of long partnership, but Balance cofounder Martin Chalk said brand he aims to build upon recent momentum behind Cleanse sku.

Skyland Food will use upcoming Fancy Food Show in NY as launch pad for revamped version of its Ibex Drinkable Yogurt sporting organic certification and new formula with heavy dose of prebiotics and probiotics, along with 9 g of protein. Also in mix from Washington, DC-based co will be new Coconut and Raspberry flavors. Founder/ceo Brandon Partridge said pricing will be unchanged. Brand in striking black bottle with ibex image on it drew some buzz at Expo West earlier in year . . . Red Bull continues its gradual move to broaden flavor palette, this time with in-and-out entry via c-store partner 7-Eleven dubbed Summer Edition that offers tropical fruit flavor in 12-oz yellow can. It joins permanent entries Red (cranberry), Silver (lime) and Blue (blueberry) as alternative to core flavor . . . At upcoming Fancy Food Show in NY, Mamma Chia will broaden its chia-based RTD line with pair of summer refreshers: Strawberry Lemonade and Pineapple Coconut . . . World Waters is looking to tap into consumers' seeming fascination with lemonade category with WTRMLN LMN lemon-flavored addition to its WTRMLN WTR watermelon-based line, which employs both flesh and rind of fruit.