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Size Matters


The news this week that the New York State Court of Appeals had struck down a bid by the New York City Department of Health and Mental Hygiene's Board of Health to ban all sugary beverages larger than 16 ounces in size demonstrates the main problem with this kind of legislation, well intentioned as it may be. When people feel their ability to choose is being encroached upon, they'll push back, and the courts will back them up.

"New York City's misguided soda ban was arbitrary, paternalistic and profoundly inconsistent with separation-of-powers principles," noted Cory Andrews, senior litigation counsel for the Washington Legal Foundation (WLF), a national public interest law and policy center, which filed an amicus curiae brief in the case. "The court's decision to strike it down vindicates fundamental constitutional values, protects consumer freedom and encourages sound regulatory policies."

WLF's brief, filed on its own behalf and on that of its client, the Allied Educational Foundation, argued that the board of health, in enacting the ban, exceeded its administrative authority by improperly attempting to exercise legislative power, which is exclusively reserved to the New York City Council. The New York appeals court agreed, declaring the soda ban invalid.

Other interested parties mourned the decision, however, and reaffirmed their belief in the use of such legislation.

"Curbing the size of sodas to 16 ounces is a sensible public health measure that New York City’s health department was courageous to propose," asserted Jim O’Hara, health promotion policy director at the Washington, D.C.-based Center for Science in the Public Interest, in the wake of the ruling. "Soda and other sugar drinks promote diabetes, heart disease, obesity and other health problems, and reducing consumption of these nutritionally worthless products must be a top priority for New York City and health departments around the country. It's disappointing that the Court of Appeals saw things differently. But we hope boards of health, city councils, state legislatures and even Congress will consider taxes, warning labels and other policies aimed at reducing soda-related diseases."

The American Beverage Association, for its part, has weighed in with the fact that most Americans are against higher taxes on sugary soft drinks or limits on the types and amounts of food items they can buy, citing various independent public polls, while the industry has strenuously opposed a California bill that would place warning labels on sugary drinks, claiming that such labels would be more confusing than helpful, while doing nothing to change people’s personal habits. The bill ultimately failed to get the votes it needed.

In July 2012, I attended a Manhattan luncheon at which Cornell obesity, nutrition and food marketing experts spoke about the then-impending New York City soda ban, which had been proposed and championed by now former mayor Michael Bloomberg. My major takeaway from the presentations by the various experts was that from a public health standpoint, the ban was a great idea, but from a psychological angle, it was an iffy proposition at best in terms of getting citizens on board with it.

Tempting as it might be to craft such measures, they won’t succeed if lawmakers’ constituents don't support the resulting legislation. Public health campaigns and early educational efforts pointing out the value of moderation for a range of products – not just sugar-sweetened beverages – and the related consequences of overconsumption may succeed where a blanket ban can't. That way, choice can be shaped without being removed altogether.

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