Manhattan 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
If Mr. Bloomberg was serious about the people of NYC’s health, then why not threaten these companies with an increase in their taxes? NYC could use the additional funds. Or better yet, why not increase these companies’ (doing business in NYC) taxes to create prevention care programs for the residents of NYC? Or maybe all of this is coming?
Well if they can legislate morality…. Then why not…. This is just the next big gulp in the absurdity….. Abyss….
I’m too far down in the comment section, but I’m hoping just one New Yorker will answer this. Why was he elected and with all his BS, would you re-elect him again. I live in Oregon and up until now, we have seen nothing like your Mayor Bloomberg. Thanks
Lexi,
Bloomberg was elected because he spent $150 Million of his own money on each of his campaigns and the NYC Establishment knew that his policies would favor him. Thus all the major media endorsed him. Also too, compared to the bombastic and unlikable Giuliani, Bloomberg’s outward appearance seemed friendly and mild. Under him NYC has been shrunk to the Borough of Manhattan and you have to be wealthy to live there. Wall Street is about a quarter mile from City Hall, think about it.
Thanks, rafflaw.
Swarthmore and Elaine,
The libertarian view on smoking bans would be the same as common sense restrictions on guns. Keep you stinking government hands off of my flaming tobacco.
Elaine, Absolutely, but some deny the ill effects of second hand smoke on those around them. I wonder what the libertarian position is on the smoking bans. 😉
I would add that this whole issue has exposed the seemingly “mild” Bloomberg for the authoritarian he really is. This is just the surface of his mindset. -Mike S.
Yep.
As Jonathan Turley wrote: “Supreme Court Justice Milton Tingling has struck a victory for sanity (as well as individual choice)…” Bloomberg’s ban was a band-aid non-solution. This isn’t to say that obesity isn’t a huge problem.
http://www.democracynow.org/2013/3/1/pandoras_lunchbox_pulling_back_the_curtain
Pandora’s Lunchbox: Pulling Back the Curtain on How Processed Food Took Over the American Meal
Mar 01, 2013
Melanie Warner, longtime journalist covering the food industry. Her new book is Pandora’s Lunchbox: How Processed Food Took Over the American Meal.
We look deep inside the $1-trillion-a-year “processed-food-industrial complex” to examine how decades of food science have resulted in the cheapest, most addictive and most nutritionally inferior food in the world. The vitamins added back to this packaged and fast food — which amounts to 70 percent of calories consumed in the United States — come from nylon, sheep grease and petroleum. We are joined by longtime food reporter Melanie Warner, author of “Pandora’s Lunchbox: How Processed Food Took Over the American Meal.” [includes rush transcript]
AMY GOODMAN: As we continue deep inside the $1-trillion-a-year “processed-food-industrial complex,” we turn to look at how decades of food science have resulted in the cheapest, most abundant, most addictive and most nutritionally inferior food in the world. And the vitamins and protein added back to this processed food? Well, you might be surprised to know where they come from. That’s the focus of a new book by longtime food reporter Melanie Warner, author of Pandora’s Lunchbox: How Processed Food Took Over the American Meal.
Melanie, welcome to Democracy Now! She’s joining us from Denver, Colorado. Vitamins, vitamin-added food. You think you go to the grocery store, and you want to get a little added punch, and you want to ensure that your kids, that your family, has added vitamins. What’s the problem with that?
MELANIE WARNER: Yeah. Well, hi, Amy. It’s great to be here.
You know, one of the things with processed food that I found while doing this book, is not only that it has an abundance of the things that Michael was talking about—salt, sugar, fat—it’s also what it’s lacking, which, it turns out, is naturally occurring nutrition, in many cases. So that’s vitamins and minerals and fiber and things like antioxidants.
So, you take something like cereal—you know, you walk down the cereal aisle, and you’re bombarded with health messages: It’s high in vitamin D, a good source of calcium, fiber, antioxidants. You see these things all over the package. And one of the things—one of the questions I asked myself when I was starting to work on this book was: Why is it nearly impossible to find a box of cereal in the cereal aisle without vitamins, added vitamins and minerals, in the ingredient list?
And it turns out, because most cereal has very little inherent nutrition. And this is in part because of processing. The processing of food is very intensive. It’s very—it’s very technical, and with cereal, can be very damaging to naturally occurring nutrients, especially vitamins and oftentimes fiber. So, what manufacturers do is they add back in vitamins. So, essentially, you see all these wonderful claims on the package, but essentially—and you look at the panel, and you’re getting 35 percent and 40 percent of your recommended daily allowance of these vitamins, but they’re essentially added in like a vitamin pill, which many people maybe are already taking in the morning. …continues…
Swartmore,
Smoking is different because it also has a negative effect on non-smokers who are in the presence of people who are smoking.
“Doug Muzzio, a professor of public affairs at Baruch College, said the large sugary drink ban wasn’t as simple as the smoking ban for the public to understand and support.
“There was irrefutable statistical evidence that smoking is bad for people in innumerable ways,” Mr. Muzzio said. “With sugary sodas, the causal chain is less clear. Everybody who smokes suffers some adverse consequences, basically. Not everyone who drinks 16 ounce sodas has a health problem.” WSJ Bloomberg maybe ahead of his time and the connection between the sodas and health problems could prove to be greater than currently thought. We are not there yet, though. Glad for the smoking bans.
“You can’t legislate a duty of virtue as if it were a duty of right. That’s the exercise of power beyond right which no one has a right to.”
I agree with Blouise that Bob has it right. I would add that this whole issue has exposed the seemingly “mild” Bloomberg for the authoritarian he really is. This is just the surface of his mindset.
Having read the opinion, it is clear that the court did an in depth analysis of the powere of the agency that enacted the portion control rule and correctly found that it had exceeded its authority and violated the separation of powers. This finding alone is enough to over turn the rule.
The arbitrary and capricious finding was made in the context of the branch of the case dealing with administrative decisions. In my opinion the court correctly found that the rule was arbitrary and capricious; however, because of the separations of powers finding that the agency had exceeded its authority and usurped the authority of the City Council even if the AC finding does not stand, this ruling should survive appeal.
With a respectful bow to my good friend, Bob Esq, with whom I have been discussing this regulation and in total agreement with him:
“You can’t legislate a duty of virtue as if it were a duty of right. That’s the exercise of power beyond right which no one has a right to.”
(duties of virtue are not appropriate subjects for coercive legal enforcement)
shelley powers:
I dont know about you but my parents always told me to eat everything on my plate. I didnt learn that from a corporation.
I might add that I told my children to eat only what they wanted and save the rest for later. They are both in good shape and have never been obese. They also did not eat junk food, we didnt keep it in the house.
If people have such weak minds as to be manipulated by Brittney Spears or the Lucky Charm Leprechaun then maybe we do need fascist dictator’s controlling our every move.
Shelley Powers,
You might be an “employee” of Bloomberg.
But I buy the your commercial pressure argument. However, forcing the consumer to think is difficult anywhere.
Here in Sweden, we are such a small market, we get a big cup of ice and one can of Coke. Or the equivalent in orange juíce, etc. Besides it is so cool here, even in the summer that thirsts don’t need quenching.
I agree the law is an absurd nanny-state assault on personal freedom, but is it really “arbitrary and capricious”? I understand that you object to it on a policy and ideological level, Professor, but what about the legal analysis. Will this judge be overruled? Do the exemptions really constitute arbitrarity and capriciousness?
You’re completely misrepresenting the law.
This wasn’t a ban on soda–it was a ban on larger soda servings. It came about as a way of countering the big gulp mentality inspired by years of fast food commercials, resulting in what amounts to an obesity epidemic.
Studies have shown that people tend to consume what they’re given, even when they’re not hungry or thirsty. So people will consume 32 ounces when 8 will do. The soda and fast food companies have been deliberately increasing soda cup sizes in the US in order to bolster profits—you actually won’t find these mega cup sizes in most other countries.
People could still consume 32 ounces if they wanted—just not all in one cup. It’s a way of reminding people to think before they consume. It’s a way of breaking the cycle engineered by corporations whose only interests is profits and could care less how many people die from obesity.
It would be nice if the community screaming about ‘freedom’ would realize that freedom also means being free from corporate manipulation. Or doesn’t that count?
Bloomberg is fighting obesity personally. He needs support. By the millions.
I however don’t see the judge’s ruling as proof that sanity rules in courtrooms.
IMHO
A huge win for big diabetes and obesity! Sadly, it is probably the right ruling.
John – yes the magazine thing would be the same. If we want to be the strict constructionists that the little 5 on the USSC claim to be the law should limit people to muzzle loading muskets
Tingling found the law to be “arbitrary and capricious.”
Wonder if they’ll find the same in the Magazine ban, arbitrarily going from a 10 round to a 7 round magazine….that makes as much sense.