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
32 thoughts on “Appellate Panel Votes Unanimously Against Bloomberg Soda Ban”
I had a friend who was very health conscious and carefully chose the foods he ate. He regularly exercised and appeared to be in a very fit state. He died of a heart attack at a very early age. I have come to the conclusion that given the complexity of the human body one never knows the exact path to longevity.
I have read (have not researched) that posting the calorie counts at the fast food places has not made much of a dent, if any, in the numbers of folk who eat there. Everytime I see the 600+ calorie count for a whopper junior I pass on by but for most it doesn’t matter.
Nevertheless if Bloomberg wants to work on the soda behavior post the bad about it. Sometimes the scare or ick factor does work.
Maybe just a politician used to having everyone do his bidding so public, if I say stop drinking soda, they darn well will stop drinking soda, lawful ban or not,
Our ninny, er, nanny Bloomberg is the poster child for our broader intrusive, demeaning, and abusive government, in all its permutations.
Mayor Bloomberg’s focus on attempting to limit soda drinking, ironically is a diversion from the real health concerns about soda. Coca-Cola doesn’t mind these debates at all. They know that by making soda drinking “sinful” that it will compel many people to drink even more of the stuff. The focus that SHOULD be taking place is thereby cast aside and forgotten, making Coca-Cola and Pepsi very, very happy.
If the Mayor were really interested in serving the public’s health, then he would promote educational programs regarding the real science behind the dangers of excessive soda drinking. But, of course, that’s not the point. The point is a fight over “control”–not over science, education, and freedom of choice, which get completely lost in the shuffle.
Here’s a nice summary of the dangers of soda drinking that should be a part of the public education about health. But you can be absolutely sure that Coca-Cola and Pepsi would fight those such disclosures to the death.
Jonathan, I wish you would write about this frightening story out of Indiana where our free speech rights as attorneys are under attack.
“Let them eat kelp”
– Mayor Bloomberg
Bloomberg has a mild exterior that disguises the mind of a tyrant. This law was the height of absurdity, but his stop and frisk initiative is the depth of his authoritarian dis regard of civil liberties.
leej, Since it is obviously a losing battle you’re correct. We know there are a few other problems in NYC that could use some funds..just a few.
raff, I didn’t know he used his own money for gun litigation. Thanks for the info.
The new Bloomberg theme song for his movement is O Soda Mio:
New Yorkers (and I KNOW there must be some here), Why do you keep electing people like this? Granted, being from Arizona, I don’t have a lot of room to talk with the politicians WE turn out, but the rational part of the population here has always assumed that their mental deficits (the politicians, that is) were mostly due to the sun baking their pea-brains. But New Yorkers don’t face the heat problem, so it must be something in the water (not the soda; Bloomberg would be glad to keep things the way they are were THAT the case).
Bloomberg has ponied up his own money to go after guns in the cities. However, I have not read anything to suggest he has done that in this soda pop nonsense.
That seems the only thing to do Nick, he wants it so much let him pay for the protracted legal battle.
Good for them….
Mayor Bloomberg has presented the worst sort of feel good solution that does not address the real cause of the problem and likely will have little positive effect.
If reducing caloric intake from specific foods were a solution then non calorie sweeteners would solve the problem of obesity. They are not a solution and obesity is a significant health problem.
A far more effective way to deal with obesity would be to mandate exercise hours and force citizens to work off excess calories.
I can’t wait for the exercise police to haul Mayor Bloomberg to Central Park and enforce a 50 minute workout.
While the Mayor is cooling down from his workout he might consider that education is an effective way to motivate consumer behavior. To naysayers who claim that education cannot work, we should note advertising which provides information and motivates consumer behavior on a daily basis.
raff, Of course, it’s our money. If this billionaire is so adamant why doesn’t he pony up his own dough for his quixotic venture. Answer..because the public trough is FREE!
I support a ban on short, elitist, paternalistic mayors.
The people of NYC will pay for the legal fees. And it will cost a lot more than a Big Gulp.
Mayor Bloomberg–New York City’s #1 Soda Jerk
Who is paying for the appeals process?
Comments are closed.