Mayor Michael Bloomberg has continued his public persona as the Captain Ahab of great big sugary drinks. The state Supreme Court Appellate Division has issued a second opinion that Bloomberg’s ban on large soft drinks in New York City is unconstitutional. Yet, Bloomberg has pledged to fight on with more appeals to defend a law that is not only paternalistic but utterly unconstitutional.

The court reached the same conclusion as most experts that “The Board of Health overstepped the boundaries of its lawfully delegated authority” in banning many eateries from selling non-diet soda and other sugar-laden beverages in containers bigger than 16 ounces. Bloomberg however called this second ruling against him just “a temporary setback.” The decision of the four-judge panel was unanimous. The judges noted a law riddled with exceptions and opposed to public sentiments:

Indeed, since a basic premise of the ban is that New Yorkers consume excessive quantities of sugary drinks, the Board’s decision to regulate only these drinks requires that any health concerns be weighed against consumer preferences for such drinks. Instead of offering information and letting the consumer decide, the Board’s decision effectively relies upon the behavioral economics concept that consumers are pushed into better behavior when certain choices are made less convenient. For instance, the regulation makes the choice to drink soda more expensive, as it costs more to buy two 16-ounce drinks than to buy one 32-ounce drink. As a result, the Board necessarily concluded, as a threshold matter, that health concerns outweigh the cost of infringing on individual rights to purchase a product that the Board has never categorized as inherently dangerous. As the intense public debate on the ban bears out, this threshold decision to regulate a particular food is inherently a policy decision5. Such decision necessarily reflects a balance between health concerns, an individual consumer’s choice of diet, and business financial interests in providing the targeted sugary drinks. In this context, the “Soda Ban” is one especially suited for legislative determination as it involves “difficult social problems,” which must be resolved by “making choices among competing ends” (Boreali, 71 NY2d at 13).

As I have stated before, I agree with critics that this is the ultimate example of the “Nanny state” where the government dictates the the proper lifestyle choices and risks for adults. 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.
The soda ban will be introduced on June 12 at a New York City Board of Health meeting. It is expected to pass.

However, Bloomberg insists 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. What is unclear is why Bloomberg is not also banning 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.

The opinion does leave open the possibility that the legislature could impose such limitations, which would trigger another constitutional challenge but would avoid separation of powers issues.

Source: Washington Post