Nanny Government suffered a setback on Monday when New York State Supreme Court Judge Milton Tingling struck down Mayor Michael Bloomberg’s proposed ban on large, sugary drinks.
New Yorkers thus were given a reprieve from the new law set to go into effect on Tuesday to prohibit restaurants, mobile food carts, delis and concessions at stadiums or arenas from selling sugary drinks in cups or containers larger than 16 ounces.
It would be premature, however, to declare it a victory of individual freedom over governmental meddling, or a personal defeat for Bloomberg. It was a setback, a lower court ruling subject to appeal — and nothing more.
In fact, no sooner was the court decision publicized than Bloomberg called a press conference and made known his intention to seek to have it overturned by a higher court. Indeed, the city has posted a formidable record of overcoming initial legal hurdles, as was the case with the ban on trans fats and mandatory calorie-count postings in restaurants.
In his ruling, Judge Tingling wrote that the proposed regulations on supersized drinks are “fraught with arbitrary and capricious consequences,” noting how there would be uneven enforcement within a single city block. The supersized loopholes were too much for the judge to swallow.
Yet, this raises the specter of a Bloomberg comeback, more invasive than the initial try. If the city loses on appeal, it might well close some of the loopholes by writing a law that will be more stringent, applying to all high-sugar beverages, including those with high milk content such as shakes and lattes.
Even the 16-ounce threshold is rather arbitrary. It significantly exceeds the American Heart Association’s guidelines for a full day’s intake of added sugar — 100 calories for women and 150 calories for men, or the equivalent of 8 ounces and 12 ounces of soda respectively. Will these guidelines become an incentive for even more draconian restrictions? (Of course, Bloomberg and associates will want to avoid highlighting the uncomfortable question of where to draw the line. Exactly how much sugar is bad for you, bad enough to outlaw? Some have argued that sugar itself is a poison and should be made illegal. Or, at the very least, come with a bold warning on the package: Sugar May Be Hazardous to Your Health.)
But since supermarkets and convenience stores are outside the jurisdiction of the New York City Department of Health and Mental Hygiene, it would remain to be seen whether a revised law would withstand loophole scrutiny. For example, one of the biggest offenders, the Big Gulp at 7-Eleven, would remain unaffected.
At his press conference, Bloomberg and the city’s legal counsel Michael Cardozo dismissed the court’s reasoning as erroneous. They also brushed aside the judge’s opinion that by sidestepping the City Council in passing the measure through the Department of Health, it would “not only violate the separation of powers doctrine, it would eviscerate it.”
“Such an evisceration has the potential to be more troubling than sugar-sweetened beverages,” Judge Tingling wrote.
This did not faze the mayor, either. Whereas the judge did not dispute the health issue, he found fault with the legality of the ban, notwithstanding good intentions; Bloomberg, on the other hand, belittled the legal concerns while focusing on his crusade against sugary drinks.
“It would be irresponsible not to try to do everything we can to save lives,” he declared, and urged jurisdictions across the country to enact similar laws. “People are dying every day” from obesity, he reminded us.
Bloomberg argues that the sugary drink is no different from previous health measures that the city has successfully undertaken, and that if they were upheld in the courts, this one should be, too.
But as Doug Muzzio, a professor of public affairs at Baruch College, pointed out, it’s not the same as the ban on smoking in public places, for example. “There was irrefutable statistical evidence that smoking is bad for people in innumerable ways,” Muzzio said. “With sugary sodas, the causal chain is less clear. Everybody who smokes suffers some adverse consequences, basically. Not everyone who drinks 16-ounce sodas has a health problem.”
For Bloomberg, this is mere casuistry, the maunderings of an ivory-tower professor unconcerned by all those people dying every day from coast to coast from that deadly sixteenth ounce. The judge’s ruling, as he sees it, is irresponsible; a victory for obesity and death.
We are not surprised at Bloomberg’s vow to appeal the court ruling. It would it be out of character for such a persistent champion of public health and other good causes to graciously accept the sober, well-reasoned judgment of a mere lower-court jurist. Not only that, but the big, sugary drink issue is really just too good to let go of. What politician worth his salt could resist the sweet lure of a pushover issue like this? What could be safer and more palatable than championing health over obesity, choosing life over death?
And that is where we differ with our well-intentioned, albeit misguided mayor. Yes, good health trumps obesity. But until Mayor Bloomberg can prove his constitutional right to dictate portion size to his constituents, free Americans have the right (misguided or otherwise) to serve, eat and drink portions of their own choosing. New Yorkers will just have to rely on their own good sense to preserve their health and wellbeing.
Big Brother, hands off our drinks!