by Marion Nestle
Mar 12 2013

Corporate health 1, public health 0: Judge nixes Bloomberg soda cap

Late yesterday afternoon, while I was fielding international calls about the soda size cap scheduled to take effect today, state Supreme Court justice Milton A. Tingling “enjoined and permanently restrained” New York City from implementing the portion-size rule.  

First, let’s recall what the soda cap is about.

In the 1950s, a 16-ounce soda was LARGE.

 

Today, a 16-ounce soda is SMALL.

 

Never mind the effect of increasing portion size and calories on body weight.  The court, says the Tingling opinion:

Does not find the necessity to address at this point the appropriateness of the Board’s attempts to classify obesity as an epidemic or a contributing factor to chronic disease…the issue before this court is whether the Board has the authority to mandate which issues come under its jurisdiction…in this case it the Portion Cap Rule and whether the Board has the authority to promulgate same (page 10). 

He concludes that the proposed rule is: 

Fraught with arbitrary and capricious consequences… uneven enforcement even within a particular City block, much less the City as a whole…It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and …no limitations on re-fills…the Portion Cap Rule is found to be arbitrary and capricious (page 34). 

And this:

The Portion Cap Rule, if upheld, would create an administrative Leviathan…The Rule 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 (page 35). 

OK, so the soda industry won this round.  How come? 

The New York Times points out that the portion size cap aroused:

the ire of the American soft-drink industry, which undertook a multimillion-dollar campaign to block it, flying banners from airplanes over Coney Island, plastering subway stations with advertisements and filing the lawsuit that led to the ruling.

The American Beverage Association issued this statement:     

The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban.  With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City.

The Mayor says the city will appeal.

CSPI’s Michael Jacobson notes that this is what happened with calorie labels.  Eventually, he reminds us, the city prevailed:

Many years hence, people will look back and think it was crazy for sugar drinks to ever be served in 32- and 64-ounce pails. 

Comments

  • J.P.
  • March 12, 2013
  • 8:24 am

I admire Bloomberg’s efforts, but I’m not sure that restrictions on sizes can resist legal scrutiny, especially with big food’s deep pockets. It might be simpler to use the path we took for tobacco and label sugary drinks with proper warnings on sugar content and diabetes risks.

  • Mark Ohler
  • March 12, 2013
  • 8:39 am

This is a victory for individuals. This is a defeat for those who believe in top-down, command-and-control decision making. Many years from now many people will wonder why they let other people make decisions that are best left to each individual to decide.

  • Vikram
  • March 12, 2013
  • 9:05 am

Marion what part of “arbitrary and capricious” is confusing you?

Soft drink manufacturers had nothing to do with the arbitrary and capricious nature of the regulation as it is written and intended. Blame first the regulators who crafted this loosy-goosey ordinance and second blame yourself for stubbornly pushing blockheaded restrictions in willy-nilly fashion. Leave the soft drink manufacturers out of it until they actually succeed in knocking down a credibly crafted law.

You fools haven’t even gotten far enough for Coke and Pepsi to crush you, yet (they are still perched on the sidelines, licking their chops set to pounce). First things first, superheros. In your haste you tripped on your cape. Sheeeesh!

Isn’t that the same CSPI guy Michael Jacobson who engineered the replacement of healthy animal fats with transfats in fast food restaurants a couple of decades ago? We should listen to him why?
He’s a perfect example of why government should stay out of private transactions. If I want to eat a mega giant burger deep fried in lard, that is MY DAMN BUSINESS. And as long as it is pure lard and grass fed beef and bunless, who is to say that it’s bad for me!
This all smacks of the worst sort of elitism. “They” aren’t smart enough to make good choices, so we must make their choices for them. The mayor wants his cheez-its but you can’t have your jumbo coke.
By all means, do as much as you can to educate folks on the evils of sugar (and not just sugary drinks). I am all for that. But if I want to buy a 164 ounce coke, that is MY business. If the mayor or NYC wants to eat cheez-its (far worse than a jumbo coke, IMHO), that is HIS business.

  • TR
  • March 12, 2013
  • 9:57 am

I get amused at how so many think that they have freedom of choice in the food environment they exist in. The notion that it is up to the individuals is naive at best. Its like throwing a lamb to the wolves and saying the lamb has the choice to flee. Folks, your consumer choices do not create the food environment that exists around you. Your notions of freedom of choice in this matter are naive and grossly ill-informed.
Until you understand what is meant by food environment, you do not understand what this issue is really about. Bloomberg’s attempt was a begginers attempt at chipping away at a much larger iceberg. And you guys are cheering that your ship is sunk? Whatever.
I admire Bloomberg for trying to do the right thing. Its just that the right thing isnt always politically popular or well defined on how to accomplish. Obviously, getting fat, developing diabetes, and dying from it for the sake of corporate profits is politically popular. Please sheeple, by all means, feel free to individually choose to be food for the wolves as you have been doing and obviously are very excited about continuing to do so. Apparently, that is the american way.

  • Library Spinster
  • March 12, 2013
  • 9:59 am

Why does someone need to drink 32 ounces or more of soda in one sitting? Why should a large popcorn at the movies be the size of a ream of paper and come with free refills? What’s wrong with the consumer knowing that a bottle of orange juice contains as much sugar as some candy bars, without the fiber that could lessen the effects? Why is HFCS in damn near everything?

It’s not “nannying” or being “politically correct” to raise these concerns. Many people who believe they are eating a healthy diet aren’t.

I’m certainly not *glad* I have diabetes, but it’s impelled me to be mindful of what I eat. And my meter (I test 4 times a day) tells me when I’ve made a mistake.

  • Michael Bulger
  • March 12, 2013
  • 10:14 am

The judge disagreed with the expertise of the Board of Health, but at the same time his ruling acknowledges their expertise and technical competence. Still, the heart of his ruling rested on his belief that the City had overstepped its authority. The judge based his ruling on 3 principles:

In the first, the judge said that the Board of Health had used economic and political considerations to shape the rule. The economic considerations the judge refers to are the costs of treating obesity. Apparently, the judge believes the Board of Health should not consider the costs of the obesity epidemic when they craft initiatives. The political considerations the judge refers to are the rule’s exemptions for 7-11′s and grocery stores (which aren’t regulated by the Health Dept.). These stores are regulated by the New York State Dept. of Agriculture and Markets. The Board lacks the tools to enforce the rule at these stores, and the judge thinks that the lack of cooperation on the State’s part is evidence of the City’s political considerations.

The second principle that the judge felt was violated is the “clean slate” principle. Here, the judge wrote that the Board of Health had overreached the mandate given to them by the NYC Charter. Some of the language in the Charter is centuries old. The judge does agree that it grants the Board power to prohibit the sale of food items on the basis of public health. However, the judge wrote that obesity was not an “eminent threat”, and so he believes that the Board cannot exercise their power by controlling the sale of sugary beverages.

The third principle cited by the judge has to do with the legislature. The judge thinks that the Portion Cap Rule is essentially the same as all the other measures designed to reduce sugary beverage consumption. In the judge’s eyes, when soda taxes failed to make it through the State legislature, the issue of reducing sugary beverage consumption was tested and failed. Because the legislature already tried and failed, no rules designed to reduce soda consumption can be issued by the City.

Some of the City’s points of appeal are obvious. For one, they will probably argue that soda taxes and portion caps are sufficiently different, and that portion caps have not been tested by the legislature. The City will likely argue that obesity and its related diseases are the type of threat embodied in the spirit of the NYC Charter. Their mandate to prevent chronic disease requires them to exercise the powers granted by the Charter to regulate the causes of those chronic diseases.

While everyone runs around like a “chicken with its head cut off” – have never seen that – we miss the bigger point that rarely gets stated:

DRINK WATER

Gotta go … it’s time to relieve myself.

  • Janie
  • March 12, 2013
  • 10:54 am

Maybe we could start by making a law to force every New Yorker to drink at least 32 ounces of water each day Ken. Or more. Probably 3 or 4 liters is the right minimum. What judge could object to making people drink water? It is basic to life. Why didn’t Bloomberg think of this?

  • SAO
  • March 12, 2013
  • 11:01 am

Did you hear that Mississippi is in the process of passing a law forbidding any towns from doing what NY did? It’s bill 2687 and forbids Mississippi towns and cities from requiring calorie information in restaurants or regulating “consumer incentive items” that are foods.

  • Suzanne
  • March 12, 2013
  • 11:48 am

It’s the same blowhards whining about individual freedom and responsibility when there’s a modest effort to curtail consumption of sugars that will screech and whine when public tax dollars are used to pay for medical care of those people who exercised their freedom of choice to ingest these substances and develop medical complications as a result. Reality? Everyone pays for the corruption of the industrial food system.

  • BGC
  • March 12, 2013
  • 12:02 pm

Who knew we still had judges with common sense?

[...] goes into effect on Tuesday, March 12.” Unfortunately, we got that late legal surprise.  Her second post gives a succinct overview of what exactly happened concerning the ruling. She includes the [...]

  • Thomas
  • March 12, 2013
  • 12:56 pm

I don’t know how I feel about this. Soda cap size restriction sounds silly to me. Why not just make a soda bottle with no cap? Then no one can drink the soda.

Next there will be a restriction on fat. Then a restriction on complex carbs. Then certain fruits.

I understand the negative health implications on soda but shouldn’t it be an awareness driven campaign rather than a restriction driven campaign? We should have the freedom of choice no?

  • Anthro
  • March 12, 2013
  • 3:46 pm

“I understand the negative health implications on soda but shouldn’t it be an awareness driven campaign rather than a restriction driven campaign? We should have the freedom of choice no?”

Public health isn’t about individuals, it’s more about societies. Children are subjected to thousands of hours of media ads for a variety of “foods” that–well, AREN’T. Where is their “freedom” from a lifetime of disease and disability?

If you look at yesterday’s entry, Marion does a thorough job of explaining the importance of taking steps (even small ones like this that are proving so contentious) to limit the impact of corporate influence on public health.

The proposed measure is not a ban–it’s main function is to help people exercise a better option by making the default serving size smaller.

If some of the commenters here (and elsewhere) had their way I’m pretty sure we’d all still be working in smoke-filled rooms and choking in restaurant booths. Children would be dying in minor car accidents and young men would be driving 90 in a 25mph zone. There are limits to freedoms and responsibilities that go with rights. I learned that in the third grade–sheeesh!

  • Mike
  • March 12, 2013
  • 4:19 pm

I agree about the health implications on soda, but people need to make healthier choices. An awareness driven campaign already mentioned in another comment should be the focus.

  • Tami
  • March 12, 2013
  • 6:38 pm

That is absolutely right, awareness driven campaign is priority.Then people will find necessary to make healthy choices and lead a healthy lifestyle.

  • jay jay
  • March 12, 2013
  • 9:16 pm

Could also be “My Body, My Choice” 1, authoritative government 0.

Depends on your perspective.

  • Emily B.
  • March 13, 2013
  • 9:17 am

Anthro is right (as always). This wasn’t a “ban”…it was Big Brother trying to “help”. What do you naysayers have against helping? Everyone needs a little help now and then. If a little helping is good, more is better so we were thinking incremental is the way to go. But you have to let us help a little first before we can help a lot. You will thank us later when finally we are deciding everything for you. The social fabric of this country needs a lot of help.

  • Nicole
  • March 13, 2013
  • 9:48 am

If I owned a small business in New York City, I would voluntarily only sell sugary drinks in 16 oz sizes or less as a form of solidarity. I probably actually wouldn’t sell soda, but that’s a conversation for another day.

  • Cam
  • March 13, 2013
  • 4:41 pm

Nicole: that’s the fundamental beauty of free enterprise. If you do own a small business (or any sized business) you can sell virtually anything in virtually any size you please when autocrats like Bloomberg do not interfere. Or you might not sell something or anything if that pleases you. That’s the whole point – free choice, free enterprise, free will – all lost on you, apparently (at least as regards other peoples’ liberty). In your world, Nicole, if you were assigned to operate a store you would sell precisely what you are told to sell and nothing else. You would be an agent of the state enforcing the will of your beloved socialist Politburo. Oh, wouldn’t that be just ducky?

[...] Corporate health 1, public health 0: Judge nixes Bloomberg soda cap–Marion Nestle on the Soda Ban ruling; quotes my boss, Michael Jacobson, with a hopeful perspective of the long-term consequences of the ruling: [...]

  • Michael
  • March 23, 2013
  • 9:25 am

mrfreddy: whether your desire “to eat a mega giant burger deep fried in lard” is “[YOUR] DAMN BUSINESS” or not, this regulation doesn’t dictate that you can’t have one — or as much soda as you can buy. It regulates the size of serving that a restaurant can offer at one time.

Similarly, JP: this *wasn’t* “top-down, command-and-control decision making”: top-down, command-and-control decision making would be an actual soda ban, which this wasn’t. Individual consumers would, under this regulation, be perfectly at liberty to buy as much soda as they liked. All that it did was regulate the maximum serving size that restaurants could offer at one time, avoiding trapping consumers into the well-documented tendency to consume more than they really want when large servings are put in front of them.

Vikram: Marion understands full well what “arbitrary and capricious” means; what’s problematic is the judge’s improper application of the legal doctrine in this case, because the regulation was neither arbitrary (it was applied to those food establishments over which the city health board has jurisdiction, and not to those that weren’t) nor capricious (contrary to the logic of the judge’s ruling, it is not the case that a law whose intent can be at least partially subverted makes it capricious, and certainly no *single* regulation is going to solve the obesity epidemic, so it’s no objection to say that the regulation is capricious because it, alone, would not offer such a complete solution). The judge pointed out very real limits to the regulation, but the leap to ‘arbitrary and capricious’ was not sound jurisprudence, and should be overturned.

Meanwhile, since the main reason for the claim of ‘arbitrariness’ was the patchwork of food establishments to which it would apply, and since the patchwork nature of the Board of Health’s jurisdiction is indeed a significant impediment to the regulation’s effectiveness, the best solution is for the State to step in to regulate serving sizes for all nutritively-sweetened beverages in all establishments statewide, and also to impose a meaningful tax per kilocalorie of nutritive sweetener.

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