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).
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.