Big Gulp: New York Judge Strikes Down Bloomberg’s Beverage Ban

110px-Big_gulp6480220px-Michael_R_BloombergManhattan state Supreme Court Justice Milton Tingling has struck a victory for sanity (as well as individual choice) in striking down New York Mayor Bloomberg’s widely ridiculed ban on large sugary drinks. As we previously discussed, the law was a poorly drafted and poorly conceived ban that allowed a host of higher caloric drinks to be sold in bars and other establishments. Tingling found the law to be “arbitrary and capricious.” Bloomberg has appeared to have developed an insatiable appetite to dictating what others can eat, including a proposed crackdown on popcorn and milk. After the soda ban, a long list of items have been put forward to Bloomberg to ban before Judge Tingling put a halt to the feeding frenzy.

Tingling focused on the obvious “loopholes” in the law that barred sales for some establishments while allowed the drinks to be sold by other establishments “even within a particular City block, much less the City as a whole.” The judge also found that the law created a an administrative Leviathan and violate the separation of powers doctrine” by sweeping into areas of legislative authority with the city council.

As we discussed earlier, I have no problem with banning sodas in school as many district have done. However, Bloomberg has decided that educational programs and warnings are not enough because adults are not meeting the expectations of the government. Bloomberg is quoted as saying “I look across this country, and people are obese, and everybody wrings their hands, and nobody’s willing to do something about it.” The solution therefore is to take away choice and to dictate Dr. Bloomberg’s diet for all citizens.

Bloomberg insisted that when you are told that you cannot have that soda, “Nobody is taking away any of your rights. This way, we’re just telling you ‘That’s a lot of soda.’” Really? Sounds a lot like “you can’t have that soda.”

Honestly, if prohibition did not work for alcohol, it is likely to be even less successful for sodas. Then there are those other items like french fries, onion rings, and other unhealthy foods eaten in excessive quantities. How about requiring proof that a large stuffed pizza has no fewer than four persons willing to sign for it? I think people have a right to an unhealthy lifestyle. This is not like second-hand smoke that harms others. You can be around someone with a large soda and remain perfectly healthy. Then there are those high calorie alcoholic drinks being served with the loaded stuffed potatoes in bars around New York.

After the ruling, Bloomberg insisted “I’ve got to defend my children, and yours, and do what’s right to save lives.” Sixty percent of New Yorkers opposed the limit and clearly believe that they do not need Bloomberg making choices for them or their families. However, most parents feel that they can defend their own children and make choices for them. Moreover, Bloomberg did not ban sodas for school children, he dictated what adults can drink. The ban was facially absurd from the start since it would only force customers to buy multiple drinks if they wanted the same amount. Then there was the confusion of the lines of exemptions. The ban did not apply to pure fruit juice or fruit smoothies or drinks that are more than half milk. Starbucks yesterday vowed to continue to serve sweetened coffee drinks before the ruling, causing an outburst by Bloomberg.

Undeterred, Bloomberg has decided to spend more money in fighting the ruling and affirm his right to control the diets of people in the city. He rejects the widespread objections over individual choice and insists that New Yorkers must be required to comply with the dietary demands of his government. However, that Tingling feeling yesterday was the voice of reason.

Source: WSJ

186 thoughts on “Big Gulp: New York Judge Strikes Down Bloomberg’s Beverage Ban”

  1. Blouise, Don’t worry about it. It is just Bob’s opinion. I live with two lawyers that disagree with him on many things constitutional. They both belong to ACS, the progressive legal society. 🙂

  2. You know in politics it’s not what they want you to focus on while doing what they are doing behind the curtain….smoke and mirrors Clinton and Ronald used them well…… Just trying to figure out what’s being implemented without the publics knowledge….

  3. Bob,

    Not intention … motivation … the motivation of good will. Categorical Imperative … good will must be good in itself and not in virtue of its relationship to other things such as the agent’s own happiness or overall welfare i.e motivated by duty which is the position I ascribe to SwM.

  4. Blouise,

    The road to hell, and communism, is paved with good intentions.

    Consider Danilov’s words to Vasili in “Enemy at The Gates”

    Danilov: “I’ve been such a fool, Vassili. Man will always be man. There is no new man. We tried so hard to create a society that was equal, where there’d be nothing to envy your neighbour. But there’s always something to envy. A smile, a friendship, something you don’t have and want to appropriate. In this world, even a Soviet one, there will always be rich and poor. Rich in gifts, poor in gifts. Rich in love, poor in love.”

    In trying to create a society that was equal, where there’d be nothing to envy your neighbor’ the communists treated their citizens like property – imprisoning them behind walls just to keep them from fleeing.

    A good intention is not the same as a good will; for a person fixated on what they deem a good intention may exercise a lack of good will in pursuance of fulfilling that intention. And then he’ll just step back and lie to himself about the end justifying the means.

  5. Bob,

    “Seen in that light, I doubt Blouise would disagree.”. You are correct … I wouldn’t.

    Think back to Kant and motivation when considering SwM’s position. It is not a position of manipulation nor a position that makes her feel good … it is a genuine concern for others which puts the motivation in a pure light. Her problem then is how to translate that position into action within the framework of this Constitution and the Social Compact that supports it and to do this without sullying the motivation. Not an easy task.

  6. SwM,

    Uh uh … I’m not walking into that one … I’ll stick to the smoking example because I’d lose if I tried to use the gun thing … the travesty (ok, maybe just a small shot across the bow) of the modern interpretation of the Second takes it squarely into a rights issue outside of duty of virtue. Bob would chew me up and spit me out … and rightfully so.

    I’ll argue gun legislation from a different platform … which I am preparing 😉

  7. Real survival in this country has become such a thing of the past that we waste most of our time worried about what others eat, drink and smoke.

    We need another doomsday event.

  8. Mike,

    Rather than follow your musings, from tedium to monotony and back again, I’ll just point out the highlights:

    Promulgating duties of virtue as duties of right in the name of preserving the health of the state is a communist ideal par excellance.

    Associating SWM, and her ILK, with the communist label for supporting the foregoing is a valid criticism; since it has absolutely no roots in our social contract whatsoever. Seen in that light, I doubt Blouise would disagree.

    Furthermore, I’m not dancing; I’m indignant. The only one playing games here is you; by purposely ignoring the thesis in search of insulting, irrelevant comments to direct towards me.

    You dismiss Jung; you dismiss Kant; you dismiss any thinkers that disagree with your ‘gut feeling’ — even if you’ve never read a word they wrote. Perhaps if you actually read what Jung wrote in “The Undiscovered Self” you’d realize just how much of an ass you sound like; since he puts so eloquently all those concerns you allude to in your weekly blog contributions.

  9. OS,

    In re your post of 9:47 pm: That’s the way those kind of policies should be shaped – positive reinforcement versus the negative reinforcement of penalties.

  10. Well said, Bob.



    It all comes back to choice and hypocrisy. In a bar? The ban is simply hypocritical and the choice impaired – both that of owners and patrons to allow/participate in smoking in that environment – is an irrational sublimation of liberty of the one or the few to the will of the masses. It is consensual behavior. Non-smokers can go to non-smoking bars if they like and I’m sure that lifting the ban on bars wouldn’t do a damn thing to deter the business of non-smoking bars, but if an owner and those who choose to smoke prefer a smoking establishment? Who are you so say they can’t have it? It’s their risk to assume. Just like wearing a helmet on a motorcycle.

  11. Mike,

    I suppose it would be asking too much, for someone as long winded and capable of traveling from tedium to monotony and back again with your arguments, to expect you to keep track of important details.

    Let’s review:

    Swarthmore mom: “Okay, The judge is probably right in that the ban in the way it was to be administered was “arbitrary and capricious”, but that is not to say another ban that if drafted differently won’t past muster. It is an idea whose time is coming. The health related costs are exorbitant.”


    You do know that within your metaphysics of morals the individual is seen as a cancer; don’t you?

    Seeing you and your ilk obviously have no regard for the individual’s “struggle for moral and spiritual integrity against the mass psychology generated by political fanaticism, scientific materialism and technological triumphalism on a global scale” (Anthony Stevens) I’m keen to guess why you’re not a full fledged communist.

    Did I call SWM a communist?

    Yet I alluded to communism; why? To bring up a point about Marxism or to shed light on the evils of treating the individual as property of the state?

    Mike, did the Soviets build a wall to keep people out or keep people in?

    There is no greater form of tyranny than when the individual is subsumed completely into the ideal of the state. It is also the antithesis of every concept upon which this nation was founded.

    You make fun of Jung yet I can tell from your response that you’re COMPLETELY ignorant of what he wrote in the book I cited. Accordingly, I completely dismiss your criticism regarding Jung’s take on this matter.

    Furthermore, care to tell me where I equated smoking bans with the big soda ban? Only an idiot would confuse the two. A smoking ban has its roots in the common law problem of nuisance. The usual remedy for nuisance is called an injunction; i.e. banning the nuisance. (c.f. Boomer v. Atlantic Cement — where cement company was permitted to pay damages in lieu of shutting down the plant) My duty not to blow cancer causing smoke into the face of another is a duty of right; and thus may be promulgated by the legislature. It is a duty I owe to another person. My duty not to overindulge in sugary drinks is a DUTY OF VIRTUE

    “All duties are either duties of right, that is, juridical duties (officia juris), or duties of virtue, that is, ethical duties (officia virtutis s. ethica). Juridical duties are such as may be promulgated by external legislation; ethical duties are those for which such legislation is not possible. The reason why the latter cannot be properly made the subject of external legislation is because they relate to an end or final purpose, which is itself, at the same time, embraced in these duties, and which it is a duty for the individual to have as such. But no external legislation can cause any one to adopt a particular intention, or to propose to himself a certain purpose; for this depends upon an internal condition or act of the mind itself.” — Immanuel Kant

    Deciding whether or not to ingest an excessive amount of sugary drinks is a duty of virtue; i.e. a duty that cannot be enforced by external legislation without an act of tyranny.

    Get it straight Mike; I am a citizen of the United States; not Property Of.

    To suggest otherwise, (e.g. that ‘it’s an idea whose time is coming’) is repulsive to everything this country stands for. The true bullies here are those who would dare convince us otherwise; to treat us like property of the United States.

    1. “Get it straight Mike; I am a citizen of the United States; not Property Of.”


      Nice dancing but we both know what you were doing and even Gene said you were “playing with your food”. Blouise, whose support you sought also didn’t back your suppositions about SwM’s communism.

      “We are talking philosophy here and how our take on different philosophical ideas leads us to political stances. SwM is more of a socialist than I but nowhere near the foolishness that is communism. She and Bob were both using the term as a baiting technique to illustrate their points.”

      You know your game well Bob, but really that’s all you’ve got and you’re sticking to it. I gave you my opinion on Jung and his body of work. I thought you were a lawyer though, but I could be wrong a polymath legend in your own mind.

      “I began to see that I was becoming wise, when I began to understand I didn’t
      know everything.” You’ve got a way to go.

  12. Elaine:

    Why is red the color of socialism? On a light wave length chart red is on the right.

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