soda ban gets nixed
June 27, 2014

New York State Court Of Appeals Kills Ban On Large Soda Sizes

Alan McStravick for - Your Universe Online

If you thought ex-Mayor Michael Bloomberg's audacious reach to limit the size of soda one could purchase died its very public death in March of 2012 with a ruling by the New York State Supreme Court you could be forgiven for your mistake. As redOrbit's Lawrence LeBlond reported last year, that ruling was really only regarded as a major setback for the law, described at the time as arbitrary and improperly enacted.

In that ruling, New York Justice Milton Tingling wrote that the regulations were “fraught with arbitrary and capricious consequences.” The other reason the original law was stayed on the day it was to have gone into effect was due to the many loopholes in the soda ban that defeated the actual reason for proposing it.

This week, however, Bloomberg's ban on big beverages received the final nail in the coffin when the New York State Court of Appeals refused to allow the soda ban to be reinstated. In their explanation, the court stated the New York City health department had “exceeded the scope of its regulatory authority” by attempting to limit the size of beverages citizens were allowed to purchase. Today's ruling represents the third time the law has been before a court of law. Each court struck it down after hearing arguments. The Court of Appeals is the last stop on the legal road.

The intent of the law, to combat obesity, was definitely a noble pursuit. However, the means the city employed to achieve that end are what had restaurant, theater and other venue owners, as well the beverage industry up in arms. Had the ruling gone the other way, New York City would have been allowed to ban large servings of soda, over 16 ounces, at restaurants, stadiums, street carts, movie theaters and other locations.

As Michael N. Grynbaum of the New York Times noted, this week's ruling, a 4-to-2 decision, may likely have far reaching effects for city agencies like the Board of Health that may want to undertake future high-profile initiatives. This decision may serve as a reminder that large programs may likely falter under the scrutiny of legal challenges.

Judge Susan P. Read of the Appeals Court penned the dissenting opinion. In it, she lambasted the majority for having ignored decades of precedent in which the board was previously given much leeway in addressing public health issues, such as regulating the city's water supply and banning the use of lead paint in homes.

Judge Read contends that the majority opinion effectively ties the hands of the board behind their backs when it comes to addressing other pressing public health issues. She wrote that the decision “misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century.”

In his 20-page opinion for the majority, Judge Eugene F. Pigott made certain to erase any perceived parallels between Bloomberg's soda proposal and past initiatives of the board, like earlier measures to ban trans fats in restaurants. Other initiatives were able to withstand scrutiny as they possessed a more direct link to the health of the public while representing “minimal interference with the personal autonomy” of the citizens of New York City.

Speaking with NYT's Grynbaum, Richard Briffault, law professor at Columbia who filed a brief supporting the city, explained that the ruling “casts a cloud over the ability of administrative agencies to engage in innovative forms of regulation,” echoing the sentiments of Judge Read's dissenting opinion.

Framing the ruling as a victory for both merchant and consumer choice, the American Beverage Association, a trade group representing soda manufacturers, said in a statement that it was pleased with the Court of Appeals ruling. They contend Bloomberg's ban “would have created an uneven playing field for thousands of small businesses in the city and limited New Yorkers' freedom of choice.”

What simply cannot be denied is the epidemic of obesity that exists in the nation. According to Centers for Disease Control and Prevention statistics released last month, a full 34.9 percent of US adults qualify as obese. Obesity can lead to preventable but mortal conditions such as heart disease, stroke, type 2 diabetes and certain cancers.

When considering the astronomical medical and healthcare costs associated with treating obesity and its related onset conditions, the argument of personal freedom likely shouldn't have carried water or weight with the Court of Appeals. It is estimated that the annual medical cost of obesity is in the neighborhood of $147 billion. On average, an obese person can expect to pay nearly $1,500 more per year for healthcare than an adult who falls in a more normal, healthy weight range.

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