by Marion Nestle

Currently browsing posts about: Soft drinks

Jul 31 2013

Court turns down NYC 16-ounce soda cap; city will appeal

The  NY State Supreme Court, Appellate Division, has turned down the Bloomberg administration’s appeal (New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene).

The court’s decision in this case begins on page 22:

Like Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority. Accordingly, we declare the regulation to be invalid, as violative of the principle of separation of powers.

…we find particularly probative the regulation’s exemptions, which evince a compromise of social and economic concerns, as well as private interests. As indicated, the regulatory scheme is not an all encompassing regulation. It does not apply to all FSEs [food service establishments]. Nor does it apply to all sugary beverages. The Board of Health’s explanations for these exemptions do not convince us that the limitations are based solely on health-related concerns (pages 17, 18 of the decision).

OK.  So the city should have made the rule apply to all food service places and all sugary beverages.  Live and learn.

Mayor Bloomberg says the city will appeal:

Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12th, more than 2,000 New Yorkers have died from the effects of diabetes. Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes – both of which are disproportionately linked to sugary drink consumption. Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic.”

The American Beverage Association is pleased.  It’s headline: “Hey New York – Your Beverage Is Still Your Choice!”

We are pleased that the lower court’s decision was upheld.  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.

Even if the city loses the final appeal, the 16-ounce soda cap is the writing on the wall for soda companies.

Sales of full-sugar sodas have been falling for years and getting worse for both Coca-Cola and Pepsi.

Cutting down on the portion sizes of sugary drinks is still a really good idea.

Here’s what the news media say about it:

Jun 12 2013

NYC is back in court over 16-ounce soda cap

I attended the brief appeals hearing yesterday at which lawyers for the New York City Department of Health (DOH) and the American Beverage Association (ABA) presented final arguments for and against the DOH 16-ounce soda cap initiative (for recap, see previous post).

The judges challenged the DOH lawyer on jurisdiction, judicial precedents, scientific basis, efficacy, rationality, and triviality.  One said “Do you need a PhD in public health to know that sugary drinks aren’t good for you?”

Another kept referring to the initiative as a ban: “It would mean sodas cannot be sold…”

The big issues raised by ABA:

  • Does DOH have jurisdiction?
  • Is the cap rational?
  • Does the soda cap adequately balance public health, personal liberty, and economic factors (i.e., beverage companies’ “rights” to sell as much sugar water as they can get away with)?

DOH argues that it does have jurisdiction and that there is plenty of precedent.

DOH also argues that the proposed 16-ounce cap is well supported by research and makes good sense.

I find DOH Commissioner Tom Farley entirely rational—and persuasive—when he talks about these issues.

Reporters from the Associated Press and the New York Times must have been there too.  Both noted that the judges were much tougher on the DOH attorney than on the one from the ABA.   The DOH attorney seemed to have trouble responding to questions about precedents.  Did she not read the DOH’s impressive “plenty of precedent” piece?  

Obesity—and its type 2 diabetes consequences—are problems requiring action.  I’d like to see the soda cap tried.

But despite Commissioner Farley’s optimistic statements to reporters, this hearing didn’t make the possibility sound hopeful.

And here’s CDC’s reminder of what this is all about:

CDC The New (Ab)normal

Jun 11 2013

NYC Health Department: one New Yorker dies of diabetes every 90 minutes

The NYC Health Department goes to court at noon today for a hearing on the 16-ounce soda cap (I’ll be there).

Yesterday, it released alarming data on diabetes deaths, now at an all-time high.

The press release notes that although NYC’s overall deaths are going down,  diabetes-related deaths are going up.

The deaths are highest in low-income communities.

In April, the Health Department reported that nearly 650,000 New York adults have diabetes, an increase of 200,000 in a decade.   Most of these are due to type 2 diabetes, the “adult” kind.

Why?  Obesity.

Although a small percentage of overweight people develop type 2 diabetes, most people with type 2 diabetes are overweight.

Losing weight is the first thing to do to prevent or treat type 2 diabetes.

Reducing intake of sugary sodas is the first thing to do to lose weight.

That is why the health department wants to reduce the portion sizes of sugary drinks at food service establishments.

Today’s court hearing should be interesting. Stay tuned.

Jun 7 2013

Chicago’s self-cancelling health program

A reader writes that she rode by this ad on her way to work yesterday.  It’s on Chicago’s beautiful lakefront walking-and-bike path.

Chicago

It’s for a Big Gulp 32-ounce drink, and a bargain at 69 cents.

The Chicago Park District explains that it:

partnered with Chicago-based AdTraction Media to develop a temporary outdoor advertising solution that adheres to concrete areas and will be displayed April through October.  The additional revenue from this agreement will help the Chicago Park District enhance the programs, projects and events offered to Chicagoans and visitors.

Did nobody in the Park District consider the irony?

Better get moving!  It takes at least 4 miles of running and 8 to 10 of biking to work off the 400 calories in that 32-ounce soda.

May 8 2013

New studies on artificial sweeteners: a puzzle

FoodNavigator.com reports two new studies on artificial sweeteners.

The first report says that artificially sweetened sodas do not lead to increased sugar or calorie consumption.

Our study study does not provide evidence to suggest that a short-term consumption of DBs [diet beverages], compared with water, increases preferences for sweet foods and beverages.

If this result proves repeatable, it leaves open the question of why the prevalence of obesity has gone up in parallel with increasing consumption of diet sodas (which it has).  

So how come diet sodas don’t seem to help people maintain weight, on average?  We still don’t know.

The second report is about a study that links diet sodas to type 2 diabetes.   In a study following 66,000 women for 14 years, it found both sugar-sweetened beverage consumption and artificially sweetened beverage consumption to be associated with increased type-2 diabetes risk. 

How come?  We still don’t know.

One thing seems pretty clear from such studies: diet drinks don’t appear to do much good for most people and aren’t any better for health than regular sodas.

Water, anyone?

Apr 25 2013

Coca-Cola: obesity is your fault, not ours

A reader sent me an e-mail received from Coca-Cola:

As you know, obesity is an issue that affects all of us. At Coca-Cola, we believe we can help solve it by working together. As you heard back in January, we are committed to doing our part – by offering more low- and no-calorie choices, more portion controlled packages, and useful calorie information in more places than ever before.

As part of our ongoing commitment to provide more information about calories, we want to share a new “Calorie Balance”  infographic that we created. This is posted on our Company website here.

Our infographic is a simple, easy tool that informs people about where Americans’ calories are coming from and what we can all do to maintain a healthy, active lifestyle.

It communicates government data and third-party published studies in a compelling way, showing that too many calories consumed as compared to those expended can lead to weight gain.

OK.  I can’t resist.  Here’ just one piece of Coke’s infographic:

Guess what #4 is.   And what food is responsible for more than one-third of calories from sugars in U.S. diets?

The infographic gives no guidance about food choices or amounts best for health, but it is quite specific about physical activity.  Do lots!

Overall, I read the infographic as saying “Hey, it’s not our sugar-water that’s making you put on weight.  It’s up to you to choose what you drink and work it off with physical activity.”

Getting active is always good advice, but doesn’t Coke’s phenomenally comprehensive and astronomically expensive  marketing offensive have anything to do with food choices?  Coke must think all that is irrelevant.

I think it’s quite relevant.  And so does the research.

Mar 13 2013

Daily News editorial: The Judge Drank Corporate Kool-Aid

Politics, they say, makes strange bedfellows.  I can understand why the New York Times would do a front-page investigative report on how soda companies engage minority groups as partners while slamming Mayor Bloomberg for overreaching with his soda cap initiative.

But can someone please explain the Daily News?   Here’s yesterday’s front page:

This was followed by two pages of “Soda plan struck down; our cups runneth over” and other gleeful responses to the judge’s soda cap decision.

But then there’s this astonishing editorial.  Explain, please.

Judge drinks the Kool-Aid

In putting Mayor Bloomberg’s soda ban on ice, Manhattan Supreme Court Justice Milton Tingling did a huge disservice to the health and welfare of hundreds of thousands of New Yorkers.

Tingling concluded that the prohibition against selling sugared beverages in containers larger than 16 ounces was both arbitrary and beyond the authority of the Board of Health, which approved the regulations.

The only thing arbitrary here was Tingling’s ruling. More, the judge was the only party who was guilty of overreaching.

At heart, he simply substituted his judgment as to sound public policy for the board’s — an action that’s beyond a judge’s proper purview.

Most amazingly, Tingling held that the board had acted rationally in voting the portion cap as one method of trying to rein in the city’s epidemic of obesity and obesity-related diseases.

He bought the indisputable premise that the board was right to draw connections among high soda consumption, obesity and diabetes, which are debilitating New Yorkers young and old.

But then the judge threw that over by stating the obvious fact that the board did not have the power to ban supersized sugar drinks everywhere, only in establishments regulated by the Health Department.

Because the public could get a 32-ounce cup at, say, a 7-Eleven, but not at restaurants, he in effect deemed the ban to be an ill-designed contraption destined to fail. But who is Milton Tingling to say that? No one.

His fundamental error was to consider the regulation from the point of view of vendors who were hoping to get out from under it.

Those covered by the ban claimed they were the victims of capriciously unequal treatment and shifted Tingling’s concern away from the pressing rationale for a regulation that would have been broadly applied.

There’s nothing arbitrary about the consequences of drinking large quantities of sodas and other overly sweetened beverages.

The correlation in certain communities among consuming soda, becoming obese and contracting related diseases are certain.

The neighborhoods with the highest obesity rates — Harlem, the South Bronx, central Brooklyn — have the largest percentages of people who are likely to drink more than one sugar-sweetened beverage each day.

All too predictably, people in low-income areas such as Bedford-Stuyvesant and East New York, Brooklyn — places where soda consumption is highest — are four times as likely to die from diabetes as residents of the more affluent upper East Side, where people generally consume far fewer sugary drinks.

No matter.

Tingling attended to the arguments of businesses looking after their own financial interests over the demands of public health — while at the same time declaring that the Board of Health is barred from taking into account the substantial economic costs generated by obesity.

Ultimately, Tingling bought into the all-or-nothing argument — the same line of thinking that killed an earlier Bloomberg proposal that would have barred people from buying sugary sodas with food stamps.

The U.S. Department of Agriculture killed that experiment, asserting that it would be unfair and unproductive to target only a limited population in such a test. So Bloomberg tried to go bigger, and Tingling shot him down.

If bringing down a serious threat is a rational goal, as Tingling wrote, then you do it as best you can, even incrementally.

A halfway measure is better than no measure and is certainly not arbitrary.

Bloomberg vows an appeal.

Here’s hoping that Tingling’s judicial superiors recognize that pursuing public health is not just rational, it’s imperative. 

Afterthought: compare this to the Times’ editorial:

There are better ways for Mr. Bloomberg to use his time and resources to combat obesity.  One is to push Gov. Andrew Cuomo and the State Legislature to impose a penny-per-ounce tax on sugary drinks…the big-drinks ban was ill conceived and poorly constructed from the start.

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. 

Page 4 of 16« First...23456...Last »