The PJ Tatler

Nanny Bloomberg's Super-Size Soda Cup Ban Hits a Snag

Calling it “arbitrary and capricious,” a New York State Judge has temporarily halted New York City Mayor Michael Bloomberg’s ban on large-size sugary drinks.

The ban was set to go into effect tomorrow.

Wall Street Journal:

The city is “enjoined and permanently restrained from implementing or enforcing the new regulations,” wrote New York Supreme Court Judge Milton Tingling, blocking the rules one day before they would have taken effect. The city’s chief counsel, Michael Cardozo, pledged to quickly appeal the ruling.

In halting the drink rules, Judge Tingling noted that the incoming sugary drink regulations were “fraught with arbitrary and capricious consequences” that would be difficult to enforce with consistency “even within a particular city block, much less the city as a whole.”

“The loopholes in this rule effectively defeat the stated purpose of the rule,” the judge wrote. (Read the full text of the ruling.)

Under a first-of-its-kind prohibition approved by the city Board of Health last year, establishments from restaurants to mobile food carts would have been prohibited from selling sugary drinks larger than 16 oz. After a three-month grace period, the city would have started fining violators $200 per sale.

The city rules, set to take effect on March 12, didn’t include convenience stores, such as 7-Elevens, and supermarkets, both of which are regulated by the state government.

In his ruling, Judge Tingling found the Board of Health’s mission is to protect New Yorkers by providing regulations that protect against diseases. Those powers, he argued, don’t include the authority to “limit or ban a legal item under the guise of ‘controlling chronic disease.’ ”

The board may supervise and regulate the city’s food supply when it affects public health, but the City Charter clearly outlines when such steps may be taken: According to Judge Tingling, the city must face imminent danger due to disease.

“That has not been demonstrated,” he wrote.

Judge Tingling also suggested that Mr. Bloomberg overstepped his powers by bringing the sugary drink rules before the Board of Health, which is solely appointed by him. The City Council, he wrote, is the legislative body “and it alone has the authority to legislate as the board seeks to do here.”

City health officials, he wrote, aren’t assigned the “sweeping and unbridled authority to define, create, authorize, mandate and enforce” the health code.

I’m note sure about the legal underpinnings of Judge Tingling’s ruling, but as far as common sense goes, the judge has hit a home run. The ban contained the double whammy of being unhelpful in keeping people from becoming obese and ruinous to the city’s retail business community.

But beyond the legal niceties, there is the concept of government controlling what we eat and drink — all for our own good, of course. It should make anyone who values liberty extremely uneasy that seemingly harmless foods and drinks when taken in moderation are singled out and declared dangerous to human health. For most of us, overeating is a choice and the resulting obesity is a consequence of not taking care of ourselves. (Note: Obesity has other causes, both glandular and psychological.)

But now that we’re apparently entering an age of universal health care, the government will be able to justify power grabs like this based on the idea that a small group of overeaters and over imbibers should not be able to monopolize scarce health care resources. To prevent this, the government will decide what is healthy eating, and what isn’t. The example of the government forcing us to eat beans and peas may be silly, but it captures the level of control that government will seek to impose if it can get away with it.

If Bloomberg can’t keep us from our super-size drinks, he will tax the living daylights out of them. That’s what government has done to smokers and drinkers. And that’s what the Bloombergs of the world will do to save us from ourselves.