New York City's soda ban is now flat.

A judge ruled to dismiss the ban on big, sugary drinks.

But as Mary Snow reports, the city's mayor isn't giving up the legislation.

It was a first-of-its-kind effort in the country to ban soda, sugary drinks, even some types of coffee beverages from being served in containers larger than 16 ounces.

The idea was part of New York Mayor Michael Bloomberg's effort to fight obesity.

But beverage companies, restaurants, movie theaters and others fought back against what they called a "nanny state."

They went to court and now a state supreme court judge invalidated the city's rule, saying:

"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."

Lattes and other drinks that were at least half-milk were not on the list.

And supermarkets and convenience stores were also exempt.

But the mayor has vowed to appeal and press ahead.

"If we are serious about fighting obesity, we have to be honest about what causes it And we have to have the courage to tackle it head on. 70,000 people will die of obesity in America this year, 5,000 people in New York City will die of obesity," says Mayor Bloomberg.

The Ameican Beverage Association, for one, consideredit a victory.

"The court ruling provides a sign of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban."

Local businesses were worried about their bottom line, like one theater that says 30 percent of its business is from large beverage sales.

CNN Reporrter Mary Snow showed the largest size, which is 44 ounces and the smallest size, which is 22 ounces.

The theater would have had to lose those large sizes in favor of 16 ounces or less. It had general manager Russell Levinson worried his small theater would lose tens of thousands of dollars in sales.

"On an independent theater like ours it's a pretty significant hit," Levinson says.

Levinson even says he agrees large sugary drinks can add to obesity problems, but he says it's not for the government to decide.