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New York’s Highest Court Kills Mike Bloomberg’s Soda Ban

Bloomberg Soda

Perhaps the only notable achievement of Michael Bloomberg’s final term as Mayor of New York City was his championing of a Health Department regulation that purported to restrict the size of sodas and other sugary drinks that could be sold in certain establishments in the City. Bloomberg claimed that he was acting in the interests of the health of city residents and justified bypassing the City Council by arguing that the regulation fell within the proper authority of city health authorities. Not surprisingly, the ban was widely mocked by politicians and comedians across the nation and was highly unpopular among New York City residents. Among the many complaints that were made against the law was the fact that the law didn’t just apply to single serve drinks but also, in some cases, to the purchase of the two liter bottles of soda sold in Supermarkets. More absurdly, even though the law had come to be known as a “Big Gulp” ban after the 7-11 drink of the same name, it turns out the Big Gulps were not banned by the law. It was because of those exceptions, the manner in which the law seemed to single out certain types of businesses, and the issues regarding whether the department even had the authority to do this, a trial court judge stopped the law from going into effect last year. That decision was later upheld by an intermediate appeals court and, today, the highest court in the state of New York struck down the ban, effectively killing it:

The Bloomberg big-soda ban is officially dead.

The state’s highest court on Thursday refused to reinstate New York City’s controversial limits on sales of jumbo sugary drinks, exhausting the city’s final appeal and handing a major victory to the American soft-drink industry, which bitterly opposed the plan.

In a 20-page opinion, Judge Eugene F. Pigott Jr. of the New York State Court of Appeals wrote that the city’s Board of Health “exceeded the scope of its regulatory authority” in enacting the proposal, which was championed by former Mayor Michael R. Bloomberg.

Two lower courts had already ruled against the city, saying it overreached in attempting to prohibit the purchase of sugared drinks in containers larger than 16 ounces, about the size of a medium coffee cup. By a 4-to-2 vote, the justices Thursday upheld the earlier rulings.

The decision most likely will be seen as a significant defeat for public health advocates who have urged state and local governments to actively discourage the consumption of high-calorie beverages, saying the drinks are prime drivers of a nationwide epidemic of obesity.

And it could also have long-term implications for the powers of the city’s Board of Health, the agency that has been the primary engine behind high-profile health initiatives like banning trans fats in restaurants and posting calorie counts on menus.

In a blistering dissent of the opinion, Judge Susan P. Read wrote that the ruling ignored decades of precedent in which the Board of Health was given broad purview to address public health matters, such as regulating the city’s water supply and banning the use of lead paint in homes.

The opinion, Judge Read wrote, “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.”

One justice in the majority, Judge Sheila Abdus-Salaam, seemed to share those concerns, writing in a separate concurrence that “no one should read today’s decision too broadly.”

Dr. Mary T. Bassett, the city’s health commissioner, said in a statement issued later Thursday that the ruling “does not change the fact that sugary-drink consumption is a key driver of the obesity epidemic.”

“We will continue to look for ways to stem the twin epidemics of obesity and Type 2 diabetes by seeking to limit the pernicious effects of aggressive and predatory marketing of sugary drinks and unhealthy foods,” she wrote.

For the most part, the legal basis for the opinion deals with issues of New York law that aren’t going to be of interest to people outside of the city, but I do think that there’s an important principle here that is relevant to government in the United States in general. Conceding for the sake of argument the idea that there are good policy reasons for a local government to be regulating the size of soda and other drinks and that such an action would be a proper exercise of government power (and I don’t agree with either of those arguments), there is a real problem with matters like this being handled by un-elected bureaucrats acting largely on the whim of the Executive rather than having the matter considered by the elected representatives of the people, which in this case would be the New York City Council. At the very least, such an action is so far outside of things that a city health department normally does, that one would think it would be prudent to have the matter considered and approved by the council so as to give it some level of democratic legitimacy. Former Mayor Bloomberg chose to ignore the city’s legislature, though, and use regulatory authority to impose a regulation that many people saw as improper, unfair, and silly. The Courts of New York have, properly, pushed back against that.

Speaking more generally, it strikes me that this action still would have been improper if it had been adopted by the City Council, even if taking that route would have avoided many of the legal problems that the ban encountered in the courts. There’s nothing wrong, of course, with the government engaging in public health campaigns, but things become more problematic when we get to the point of actually banning products or regulating the size in which they can be sold. New Yorkers are, like all of us, free individuals capable of making their own choices. I don’t have any problem with the idea of providing people with more information about things like health eating — which is why I have no problem with the things that Michelle Obama has done in that regard — but in the end people must be allowed to make their own choices. If that choice includes a 64oz Mountain Dew, then that’s their choice and neither you, nor I, nor the City of New York or any other government should prevent them from making that choice. Eventually, maybe, enough people will make healthy eating choices that businesses will respond with more choices in that area. That’s how the market works. It doesn’t work when some bureaucrat who thinks they know better makes choices for people.  Obviously, there are different issues at play when we talk about children, which is why it would be appropriate to talk about changing school lunch menus to make them healthier and banning vending machines in schools (although I have to wonder when they ever became a thing because they didn’t exist when I was in public school up until the mid-1980s). When we’re talking about adults, though, it is simply in appropriate for the state to make choices for people like this.

Here’s the opinion:

NYC Soda Ban Decision by Doug Mataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Jack says:

    Obamacare has set the precedent. A city or state must only declare a tax for consuming large sugary drinks and the courts will uphold it. Nanny state liberals love to tell other people how to live their lives.

    Like or Dislike: Thumb up 8 Thumb down 5

  2. anjin-san says:

    @ Jack

    Nanny state liberals love to tell other people how to live their lives.

    So tell us, are you for marriage equality and reproductive choice?

    Like or Dislike: Thumb up 4 Thumb down 3

  3. Jack says:

    @anjin-san: Anjin, I could care less about what other people do with their lives.

    Like or Dislike: Thumb up 3 Thumb down 3

  4. george says:

    @Jack:

    Nanny state liberals love to tell other people how to live their lives.

    Not like nanny state conservatives and the War on Drugs. Because telling people what they can put in their bodies is different when your side does it.

    Like or Dislike: Thumb up 2 Thumb down 2

  5. grumpy realist says:

    And it was a totally silly law in the first place. Bloomie would have done better making certain that more public drinking fountains were located around NYC.

    Like or Dislike: Thumb up 5 Thumb down 0

  6. anjin-san says:

    @ Jack

    I could care less about what other people do with their lives.

    Sounds like you are dodging. Are you for marriage equality and reproductive choice? Thats a yes/no question.

    I could care less about what other people do with their lives.

    That’s an interesting response. If your next door neighbor fires up a meth lab in his house, do you care?

    Like or Dislike: Thumb up 1 Thumb down 1

  7. Moderate Mom says:

    @anjin-san: How many nits can you pick?

    Like or Dislike: Thumb up 4 Thumb down 2

  8. Tony W says:

    This was indeed a silly law and a good example of liberal overreach – even while trying to do an ostensibly good thing (prevent obesity) it is the definition of a Nanny State law.

    Some of my slippery-slope-loving Republican friends like to compare this to the ACA, however, and there is little legitimate comparison. Bottom line for me: The ban on large-size sugary soda takes away personal responsibility and cedes it to the state, where the ACA demands personal responsibility from everyone who will eventually require health care.

    @anjin-san – I guarantee you are on to something with Jack. Probably best at this point to be the bigger man and let his hypocrisy shine.

    Like or Dislike: Thumb up 5 Thumb down 1

  9. Tyrell says:

    @grumpy realist: This was just one of a number of laws and regulations that Bloomberg wanted to put on the middle class working people. Many people buy the large drinks to take with them on trips or on to work to save money instead from buying drinks out of expensive vending machines. Mayor Bloomberg probably drinks expensive martinis for lunch and rides around in a bullet proof limo surrounded by guards armed with automatic weapons. Yet he wants to restrict people’s freedom to buy a large, $1 soft drink.
    Let the people decide. Educate the people to use better health habits instead of restricting their freedoms. Some misguided leaders in some cities are wanting to ban junk food, Happy Meals, and Girl Scout cookie sales.
    So we will see the day come somewhere when people will be arrested for – possession of Doritos and doughnuts.

    Like or Dislike: Thumb up 2 Thumb down 0

  10. Eric Florack says:

    If nothing else, this whole scenario is a prime example of government doing what government does…. growing…extending its limits. I’m in the city today…. as it happens, parked across the bay from LaGuardia, watching the planes land and take off, and listening to the radio. The unelected health dept muckties are screaming bloody murder as only a three year old who’s had a toy taken away can scream, swearing they’ll find some way to make their will stick.

    Apparently, freedom and the concept of limits on government power has no meaning for these creeps.

    Like or Dislike: Thumb up 2 Thumb down 2

  11. george says:

    @Eric Florack:

    Apparently, freedom and the concept of limits on government power has no meaning for these creeps.

    I think that ship sailed with the War on Drugs, and then really got going with the Patriot Act. This is just continuing on course.

    Like or Dislike: Thumb up 1 Thumb down 1

  12. anjin-san says:

    @ Florack

    The unelected health dept muckties

    As someone who was in the restaurant/bar business for a long time, I can assure you that health inspectors are a good thing. Unless, of course, you don’t mind a nice dose of food poisoning now and then.

    I guess insisting on safe and sanitary conditions is tyranny. As bad as Hitler, really.

    Like or Dislike: Thumb up 0 Thumb down 4

  13. DrDaveT says:

    Perhaps the only notable achievement of Michael Bloomberg’s final term as Mayor [...]

    I’m guessing you were out of the country (or perhaps the solar system) for Hurricane Sandy…?

    Like or Dislike: Thumb up 0 Thumb down 3

  14. bill says:

    @Tony W:

    where the ACA demands personal responsibility from everyone who will eventually require health care

    but who’s going to pay for it ultimately? the jury will be out for years on this, while bloomie’s lameness is gone now.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. anjin-san says:

    @ bill

    but who’s going to pay for it ultimately?

    Everyone will pay for it, because everyone needs health care. Are you unhappy that you have lost the right to be a free rider?

    Like or Dislike: Thumb up 1 Thumb down 1

  16. Eric Florack says:

    @anjin-san: Free ride?
    ISNT THE WHOLE POINT OF Obamacare is to give the poor a free ride? After all, those who can afford it already HAD healthcare.

    And what has health inspection of z restaurant to do with what size drinks can be sold?

    Like or Dislike: Thumb up 3 Thumb down 0

  17. Eric Florack says:

    @anjin-san: Oh.. and tell us, great defender of government… does food poisoning still happen?

    Like or Dislike: Thumb up 3 Thumb down 0

  18. Tony W says:

    @Eric Florack:

    ISNT THE WHOLE POINT OF Obamacare is to give the poor a free ride? After all, those who can afford it already HAD healthcare.

    You are delusional if you think the poor didn’t already have a “free ride” under the old system. Under the ACA we are giving the poor an option to seek care in doctors offices, before they are in an expensive emergency situation, rather than using the ER as their 10 PM free clinic.

    You think those ‘free” ER visits don’t cost the rest of us? I thought you folks were on the side of personal responsibility and everyone paying their own way?

    Like or Dislike: Thumb up 1 Thumb down 0

  19. grumpy realist says:

    @Tony W: Also a lot of health problems are CHRONIC or SLOWLY GROWING health problems (e.g. cancer) which do NOT get treated in an emergency room.

    Telling people that you’re not going to fix their diabetes until they’re at the point of death doesn’t sound like an efficient health care system to me.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. grumpy realist says:

    @Eric Florack: You don’t read the newspaper much, do you?

    Like or Dislike: Thumb up 0 Thumb down 2

  21. anjin-san says:

    @ Florack

    does food poisoning still happen?

    Sure. And murders still happen, even though murder it is illegal. The world is not a perfect place. Is this really your argument? It sounds like something a 13 year old would say.

    And what has health inspection of z restaurant to do with what size drinks can be sold?

    You are the one that was in a frothing-at-the-mouth rant against health inspectors. The soda thing was one aspect of their work in one city. In other words, a tiny part of the overall spectrum of work done by health inspectors in the US.

    ISNT THE WHOLE POINT OF Obamacare is to give the poor a free ride

    No.

    After all, those who can afford it already HAD healthcare.

    A lot of them, sure. ALL of them? Even you are not that ignorant.

    Like or Dislike: Thumb up 0 Thumb down 3

  22. anjin-san says:

    I thought you folks were on the side of personal responsibility and everyone paying their own way?

    That would explain why Cliven Bundy is a right wing hero. Oh, wait…

    Like or Dislike: Thumb up 1 Thumb down 3

  23. anjin-san says:

    @ Florack

    ISNT THE WHOLE POINT OF Obamacare is to give the poor a free ride

    I am going to come clean here. The whole point of Obamacare is to force Eric Florack, a patriot and a maker, to pay for the health care of a bunch of shiftless colored people who’s only goal in life is to watch daytime TV and drink cheap vodka.

    I knew we could not fool you for very long.

    Like or Dislike: Thumb up 1 Thumb down 3

  24. Eric Florack says:

    @grumpy realist: with Muni Water feeding them?
    Oh, the lawsuits,,,,,

    Like or Dislike: Thumb up 1 Thumb down 1

  25. Eric Florack says:

    .Sure. And murders still happen, even though murder it is illegal. The world is not a perfect place. Is this really your argument? It sounds like something a 13 year old would say.

    Hey, gotta keep things at a level you can understand. In any even you’re the one pushing government as a cure all

    You are the one that was in a frothing-at-the-mouth rant against health inspectors.

    The front line folks? Not in this case.
    You’re apparently unaware how much power has been ceded to the NYC Health Dept. Too damned much.

    A lot of them, sure. ALL of them? Even you are not that ignorant..

    If they can afford to deal with it themselves and still don’t its not the governments business to dictate it to them, nor is if their purview to take MY money to pay for it. PERIOD.

    Like or Dislike: Thumb up 2 Thumb down 2

  26. Eric Florack says:

    @Tony W: and adding another layer of beaurcracy is an advantage, how, exactly?

    Like or Dislike: Thumb up 2 Thumb down 1

  27. anjin-san says:

    nor is if their purview to take MY money to pay for it. PERIOD.

    Hmm. You did not have a problem with money from childless taxpayers footing part of the bill for your children’s education. Guess it’s different when you are the one getting free stuff.

    how much power has been ceded to the NYC Health Dept

    Do you live in NYC?

    you’re the one pushing government as a cure all

    Please show even one time when I have put government forth as a “cure all.” When you have to lie to support your argument, you are making a shitty argument.

    Like or Dislike: Thumb up 1 Thumb down 1

  28. Just 'nutha Ig'rant cracker says:

    @anjin-san:

    Even you are not that ignorant.

    I wouldn’t count on that…

    Like or Dislike: Thumb up 1 Thumb down 1

  29. Just 'nutha Ig'rant cracker says:

    @Just ‘nutha Ig’rant cracker: See, I was right.

    Like or Dislike: Thumb up 0 Thumb down 1

  30. Eric Florack says:

    @anjin-san: No, but I’m there on average 3 days of 7.

    As for school taxes, I’ve been against government schools and the associated taxes for, well, always. I’m not under the illusion of government schools being a benefit.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. anjin-san says:

    @ Florack

    I’ve been against government schools and the associated taxes for, well, always.

    So did you reach into your wallet and pay for a private education for your children, being consistent with your beliefs? Or did you reach into your neighbors wallet and go buy a boat with the money you saved?

    Like or Dislike: Thumb up 1 Thumb down 0

  32. Eric Florack says:

    @anjin-san: kinda hard to do when that moneys been stolen to support the socialist wet dream.

    And no money was “saved”. How the hell can money be “saved” when its already taken from me?

    Like or Dislike: Thumb up 0 Thumb down 1

  33. anjin-san says:

    @ Florack

    I’m afraid you are going to have to run that through the Babble-to-English translator for me. It sounds like a comment from someone who has brain damage. Seriously, do you post when you have been drinking?

    Bottom line is, you have no trouble at all accepting things that are paid for by the tax dollars of others when it benefits you personally, yet you throw a tantrum when $1 of your tax money benefits another.

    Personally, I have no problem with having a few bucks from my taxes help another American get needed medical care. I’m thankful that I am in a position to contribute to the society that has given me so much.

    It’s ironic. You clam to be a Christian, yet you clearly reject most of what Jesus taught. I’m a Buddhist, and I embrace most of it.

    Like or Dislike: Thumb up 1 Thumb down 0

  34. Tony W says:

    @Eric Florack: Adding another layer of “bureaucracy” is an advantage because it assures that the pool of payers is relatively equal to the pool of takers.

    Just because something is administrative and you don’t understand it, does not mean that it serves no purpose.

    Like or Dislike: Thumb up 0 Thumb down 0