By Kim Robson
Last June, we told you about New York City’s Mayor Michael “Nanny” Bloomberg’s plans to limit serving sizes of sugary drinks. The proposed ban, which had been set to begin on March 12th, would have applied to pre-sweetened drinks containing 25 calories or more per eight-ounce serving. Such drinks would be available only in 16-ounce or smaller containers. That includes soda, iced tea, and energy drinks. The measure would not apply to diet sodas, fruit juices, dairy-based drinks like milkshakes, or alcoholic beverages.
Bloomberg has made public health one of the top priorities of his office. He’s promoted a number of aggressive regulations before this one, including bans on smoking in restaurants and parks, a prohibition against artificial trans fat in restaurant food, and a requirement for health inspection grades to be posted in restaurant windows.
One day before it was to go into effect, New York Supreme Court Judge Milton Tingling struck down the plan and ruled that the city is “enjoined and permanently restrained from implementing or enforcing the new regulations.”
The proposal’s success required the approval of the Board of Health, which was easy to obtain as the members are all appointed by Bloomberg, and the board’s chairman (who is also the city’s health commissioner) supported the measure. The mayor received a lot of criticism for overreaching far beyond the appropriate bounds of government power.
The judge ruled that the city’s Board of Health, appointed by the mayor, does not have the power to “limit or ban a legal item under the guise of ‘controlling chronic disease.’ ” The court argued that it would fall to the New York City Council, the city’s legislature, to enact such a rule, saying that “the city council alone has the authority to legislate as the Board seeks to do here.”
This is a huge victory for those who felt that Bloomberg’s ban infringed upon their right as adults and citizens to adjust their diets as they see fit. The ban would have limited only the serving sizes, not the number of drinks purchased. This would have created more landfill waste.
The judge’s ruling also mentioned that “the court finds that the regulation herein is riddled with exceptions based on economic and political considerations” — certain types of dairy products, for instance, including drinks containing more than 50 percent milk were exempt. Further, the ban applied only to businesses regulated by the city (those with a letter grade sign in their window from the Board of Health), but not convenience stores and grocery stores, which are regulated by the state. Those issues and others led the court to deem the proposed rule “fraught with arbitrary and capricious consequences.”
Former Alaska governor and 2008 vice presidential nominee Sarah Palin spoke at the Conservative Political Action Conference (CPAC) on March 16th. During her speech, she poked fun at Bloomberg’s ban while sipping a Big Gulp. The audience cheered and clapped. “Oh, Bloomberg’s not around. Our Big Gulp’s safe,” Palin quipped. “Shoot, it’s just pop, with low-cal ice cubes in it. I hope that’s okay.”
Mayor Bloomberg isn’t taking the ruling lying down, however. He says the city plans to appeal, and called the ruling “clearly an error.” He believes the court will eventually see it his way. “We strongly believe that, in the end, the courts will recognize the Board of Health’s authority to regulate the sale of beverages that have virtually no nutritional value and which – consumed in large quantities – are leading to disease and death for thousands of people every year,” Bloomberg said. “There are many, many instances where a lower court decision has gone against us and then been reversed. If lower court rulings always stood, Grand Central Terminal would have been knocked down 40 years ago.”
We shall see. Time will tell. Perhaps the voters will, too.