soda ban gets canned
March 12, 2013

Bloomberg’s Soda Ban Gets Canned

Lawrence LeBlond for — Your Universe Online

The fight to cut down on the sale and consumption of large sugary sodas in New York City just saw its first real setback. A ban on large-size sodas that was set to go into effect today will have to wait, after a state judge blocked the measure, calling the movement arbitrary and improperly enacted. The verdict hands a huge victory to the beverage industry.

NY Supreme Court Justice Milton Tingling on Monday wrote in his ruling that the regulations were “fraught with arbitrary and capricious consequences.” He also wrote that there were too many loopholes in the ban, which defeated the actual reason for proposing it.

But while the measure to ban the oversized drinks in NYC was effectively killed by New York Supreme Court Justice Milton Tingling on Monday, it´s not stopping other jurisdictions from implementing their own restrictions on unhealthy behaviors.

The ban aimed to stop the sale of sugary soft drinks in quantities larger than 16 ounces in places that were regulated by the city´s health department. Such places include fast food chains, movie theaters, street vendors and stadium concessions. Grocery stores and convenient stores were exempt from the ban.

The law defines such drinks as “any beverage sweetened with sugar or another caloric sweetener that contains more than 25 calories per 8 fluid ounces and contains less than 51 percent milk or milk substitute by volume as an ingredient.”


Opponents of the law called it flawed and confusing, and pointed out several inconsistencies. Many juices made the restriction list, while highly-sweetened and calorie-laden milkshakes were exempt because they met the milk criteria, labeling such beverages as a source of nutrition.

Dunkin´ Donuts issued flyers to customers in preparation of the ban, telling them they would only serve hot cocoa in small and medium sizes, and no longer in large. But because both hot and iced lattes met the milk requirement, the donut-giant was allowed to continue to sell those in the large sizes. For comparison: a medium hot cocoa has 320 calories and 44 grams of sugar, while a medium mocha latte has 350 calories and 51 grams of sugar.

As for coffee and tea, there was no restriction on size, but any sugar added to these beverages would have to been done by the customer after purchase.

Despite all the criticism early in the game, Mayor Michael Bloomberg and his office went on with the proposed ban, with full support of the NYC Department of Health and Mental Hygiene. The biggest driver of their push to ban large sodas was obesity. Bloomberg cited studies that showed that 58 percent of NYC adults and 20 percent of school children were overweight or obese.

"Obesity is a risk factor for heart disease, cancer, and diabetes," said the health department amendment to the city health code. "Adults who are obese are almost twice as likely to develop diabetes as those who are overweight and almost three times as likely as those who are at a healthy weight .... Today's children may have a shorter life expectancy than their parents."

The Health Department has seen several successes in recent years, including the ban on trans fats in NYC restaurants and smoking bans in public places. It noted that a ban on large sugar drinks could extend the mortality rate in the city 3 years longer than the national average.

“In our city, I'm happy to say we have had some results" from instituting sometimes controversial public health initiatives, Bloomberg said at a recent conference in New York City touting electronic health records. "We have the lowest murder rate we've ever had, we have the lowest number of deaths by fire, lowest number of people dying from smoking, lowest number of traffic deaths we've ever had."

He said those positive results have been partly due to widespread public health initiatives put in place throughout the city. But, he added, that it was high time to “focus on obesity.” He said that “for the first time in the history of the world, more people will die from the effect of too much food than from starvation."

During that conference, Bloomberg made mention of the proposed soda ban.

"Hopefully the courts won't stop us," he said. "If we can use portion control with full-sugared drinks to just sort of tweak people and give them the information they know and get them to drink a little bit less, then we will make a big difference on obesity."


But the beverage industry, namely the American Beverage Association (ABA), called the measure an “unprecedented interference” with consumer choice, and has asked the court to rule against the city´s measure to implement the ban. Not only did they win that fight, but Judge Tingling also issued a permanent injunction barring the city from implementing the plan any further.

Bloomberg´s office said it would appeal the ruling, which also held the law violated the separation of powers, meaning the city council, and not the mayor, should have propagated the measure.

Bloomberg, 71, has made public health his number one priority since taking office in 2002. He said despite all the successes his office has contributed to over the years in combating the public health crisis, the obesity epidemic is by far the worst. “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.”

Bloomberg said Judge Tingling´s decision was “clearly an error,” and believed a higher court would overturn the ruling in his favor. “If lower court rulings had always stood, Grand Central Terminal would have been knocked down 40 years ago,” he said.

In welcoming the court´s decision, ABA spokesman Chris Gindlesperger told Bloomberg News that the ruling has likely saved beverage makers hundreds of thousands of dollars in costs, saving them from having to “retool, remold, re-label and restock” their products.

The ABA said in a statement yesterday that the ruling “provides a sigh 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.”

Scott DeFife, executive vice president for government affairs at the National Restaurant Association (NRA), said in an affidavit that if the ban went into effect, the fast-food and restaurant industry would have had to buy tens of thousands of new cups and glasses to comply.

Robert Sunshine, executive director of the National Association of Theatre Owners, said movie theaters would have had to dish out even more. Soda accounts for nearly 20 percent of their profits and 98 percent of such sales come in servings of more than 16 ounces, he said in a statement.

The Center for Consumer Freedom told MedPage Today in May 2012 that Bloomberg's proposal was "perhaps the worst in his long line of failed nanny-state policies."

"New Yorkers don't need a PhD in nutrition to tell them that eating or drinking too much of anything is unhealthy," the group said in a statement. "It only takes a little common sense and personal responsibility -- two things that almost every New Yorker possesses."


But in a study published in the March issue of Health Affairs, researchers found that the general public supports the government´s proposals to change lifestyle habits for the sake of their health. Stephanie Morain, lead researcher of the study, said that when interventions seem intrusive or coercive, they are less supportive.

"One of the things we thought was interesting from our study is while New York City has been on the forefront of many of these interventions, we thought New York City might be more supportive of these interventions," said Morain, a doctoral candidate in health policy at the Harvard School of Public Health. "It surprised us that we didn't notice a difference for support of these interventions compared with the rest of the nation."

Morain´s research suggests that "there might be an opportunity that these interventions might be successful in other communities as well.” However, “we didn't see different support in the different areas of the country."

According to Bloomberg News, if anything, yesterday´s ruling “unmasks Mayor Bloomberg´s misguided soda ban policy for what it is: a cosmetic solution to a complex problem,” said William Thompson, a former city comptroller and one of five Democrats seeking the party´s mayoral nomination this year.

The mayor should have focused on encouraging physical fitness and voluntary diet improvements, Thompson said in a statement to Bloomberg News. “To solve the serious health challenge of our city, we need leadership, not gimmicks,” he said.

The case is New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, 653584-2012, New York State Supreme Court, New York County (Manhattan).