by Marion Nestle
Oct 16 2012

Big Soda to Bloomberg: We’ll see you in court

Mayor Bloomberg’s cap on soda sizes at 16 ounces has elicited a hard-hitting, Friday-afternoon (let’s hide it if we can), but otherwise well organized cease-and-desist lawsuit from the soft drink industry.

The suit, New York Statewide Coalition of Hispanic Chambers of Commerce et al. v. The New York City Department of Health and Mental Hygiene et al., is represented by Latham & Watkins, a law firm that often represents the American Beverage Association (ABA), the leading soft-drink trade group and one of the plaintiffs in this case.

Other plaintiffs are the Teamsters Local 812, the Korean-American Grocers Association of New York, the National Association of Theatre Owners of New York State, and—-no surprise—the National Restaurant Association.

These groups are all concerned that the soda cap might encourage people to reduce soda sales (its point, after all).  This would drive down profits for stores, concession stands in movie theaters, restaurants, and the people who distribute sugary beverages.

The basis of the suit includes these complaints [with my comments]:

  • The Board of Health does not have the legal authority to cap soda sizes at 16 ounces (only the City Council does): “This case is not about obesity in New York City,” the plaintiffs wrote in the opening sentence of the suit. “This case is about the Board of Health, appointed by the mayor, bypassing the proper legislative process for governing the city.” [Legal experts think that cities do have the authority to regulate public health, witness smoking bans, helmet laws, and seatbelt requirements]
  • The cap is a ban on personal freedom. [Nobody is stopping people from buying more soda if they want it]
  • Most New Yorkers oppose the soda cap. [Perhaps because of the extraordinarily expensive campaign conducted by the soda industry]
  • The cap is “arbitrary and capricious,” because it applies only to some businesses and targets only certain types of beverages: “Delis and hotdog stands are barred from selling a 20-ounce lemonade, but the 7-Eleven a few feet away remains free to sell Big Gulps.”  [The rule applies to all businesses over which the city has jurisdiction, so there is nothing arbitrary about it] 

This lawsuit is clearly about profits, not health.  Let’s hope the Court throws it out.

The first 14 of the documents are available in a zip file here (but only for the next week or so).

  • Cathy Richards

    Thanks for the update Marion. It will be interesting to see how this progresses and how it is reported – particularly during the next few weeks running up to the election, a la the business model vs medicare theme.

  • Brendon

    You don’t have to drink big sodas if you do not want to. Don’t try to tell me what I can and cannot drink.

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  • People can still drink as much sugary soda as they want. This is just a positive attempt to set the norm of consumption to a healthy level. Big soda has one compelling interest, and it is neither health nor freedom: it is to sell more soda. Go Bloomberg!

  • Will Griffin

    While I do agree with your overall point here, I do respectfully disagree with your claim that the policy is about health and not profits. I claim that if the policy were actually about health they would not have banned large sodas; instead, they would have taxed all soda. Prohibition has been readily demonstrated throughout history to be ineffective. People simply don’t respond well to being told what to do, because the simple fact that they are being told what to do implies that there already exists prior behavioral incentives. People don’t cease doing something they like doing simply because someone mandates they not do it. People smoked cigarrettes regardless of the health concerns. Organizations lobbied. Big Tobacco lost. The government taxed cigarrettes. Now people smoke less cigarettes. If this soda policy were motivated solely by altruistic and public health concerns they would have taxed all soda and sugary beverages. Banning large sodas seems to me to be a PR move. Thoughts?

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