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:
