by Marion Nestle
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.

  • Joe America

    I agree with Tim Mitchell

  • vic

    that is right take the sugarry staff off the list.

  • Cam

    Just the “sugarry” stuff? Why not the starchy stuff? Why not the stuff packaged in plastic? Why not the overpriced organic stuff? Why not just do away with traditional SNAP and make a feeding program with the full range of harsh arbitrary food restrictions? Such a program would save tax dollars enough to more than balance the budget if it didn’t accomplish anything else. Bloomberg could be made Czar of this program so he could manipulate family menus to suit his whims from week to week. A win-win situation, it’s all good!

  • Why oh why is the government allowed to subsidise the crap in the first place. Take away the subsidies from grain producers, and soda wouldn’t be cheaper than food or water. Why tax something that you’re subsidizing? Remove the subsidies, remove the need for taxes. Less government intervention to produce the same effect as more.

  • charles grashow

    “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.”

    Who exactly forces the people living in these neighborhoods 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.”

    So – are you saying that poorer people are less intelligent – than people who live in more affluent areas?

    Whatever happened to personal responsibility??

    What are the limits of government? What if they tried to ban the sale of butter because diets high in saturated fat are supposedly bad?

  • I wouldn’t agree with your comment on poorer people are more likely to die from diabetes but I do agree with you on responsibilty as being a major culprit in this problem.

    I would also add that lack of knowledge as being another reason why the rise of diabetes is evident in these neighborhoods… so many people really dont understand that it is more than the sodas in there diets that actually contribute to this disease.

    For instance it is also the cheap bread that is largely consumed because of the poverty level in these neighborhoods which most just look at it as a way to feed there families but really if they knew how greatly it contributed to diabetes they may not take a choice like that… I’m just saying I lost many family members to diabetes and it is because of that I am aware of things like that.

    Hence I say it is also a lack of knowledge that is the blame too.

  • MN

    Finally, finally Amanda tells us something to make sense of all this. The problem is people in poverty fattening, getting diabetes and costing us middle class people a ton of money. The soda ban targets those poverty stricken people to force them to shape up. It all comes down, apparently, to a fundamental truth: irresponsibility and “also lack of knowledge” are the root cause of poverty. Poverty, obesity, diabetes are all merely symptoms of irresponsibility and lack of knowledge (ie. stupidity). People with these tendencies need to be closely supervised and meticulously regulated from infancy if we are to perfect our society. Now we’re getting somewhere, no?

  • Sugar isn’t on any controlled dangerous substance list. It hasn’t been proven to be toxic or dangerous to humans. Until such a time, nobody has the authority to control the consumption of it. It’s like only allowing one beer at a time to be sold in a 6 pack to stop alcoholism or like controlling the bottle size of whiskey a person could purchase. We live in a free society where we make our own choices for our own health. We have to live with the consequences. The only ruling that must be made next is to stop forcing us to pay for people’s insurance when they make poor decisions to take care of themselves. If 16 Oz is the limit on sugar soft drinks, then next it will be the number of donuts in a box or portion control at fast food restaurants. We must educate and promote good fitness and create a sense of pride for a better, stronger nation. Control is the key word here…

  • pigbitinmad

    Why is it okay to regulate cigarettes and not Soda? Same argument applies. Soda is probably just as bad if not worse.

  • CN

    Supreme court in the Health Care decision confirmed that government has the right to tax anything. The so called sin tax(tobacco, alcohol , etc) is a way to tax the individual to reimburse the public for the eventual costs of these activities. Although it does not completely stop the activity but it does reduce it by making it more expensive. It also sidesteps the whole issue of government intrusion. Practically speaking, it might be a better way to go.

  • Library Spinster

    When Philadelphia tried to institute a tax on sugary drinks (not just soda), the beverage industry went into overdrive and killed the initiative.

  • You just cannot do that (ban some size of soda), at least without giving people a way to opt out. I understand that some people need to aid themselves to resist temptation by making it more difficult for them to binge and so a city might have a super majority that want to get together to make binging more difficult but those how do not want to participate have rights to, and moving to another city is too much to ask.

  • Don

    I hate to say this is one of the few times I disagree. I really find soda disgusting. In fact, nearly every time I see someone drinking it I basically tell them that is nearly as bad as smoking and then give the list if they have not heard it from me already.

    That being said, I do not want to live with an Orwellian big brother like Bloomberg that can tell you what to do. The same big brother that can bad 16 ounce soft drinks, can be bribed by Monsanto and the drug industry to ban organic foods; and let’s be honest, the latter is more likely these days. The government was set up to protect us from each other – not protect us from ourselves or tell us how to live our lives. That goes for my thoughts on the war on drugs even though I have never even touched the stuff. Bloomberg’s dictatorial control freak attitude was one of the reason’s I moved out of NYC. At least one honest judge had the guts to stand up to him.

  • Krupp

    The issue in here is to watch for what you eat and drink for you to avoid such health problems. Be responsible for your own being.

    Sure there’s a ban for these kind of products, but you cannot control people on what they want to eat/drink. Besides, it is not actually good to assume that people who are less fortunate or poor will most likely to die due to Diabetes. What you need to do, is to educate people about this disease or other health problems. They need to know the side effects of consuming a lot of sodas in a day or a week etc. This way, they’ll be more watchful for drinking sugared beverages.

    In fact, some of the diabetic clients are in need of sugar especially when they would reach the hypoglycemic reaction. With this, I can say that somehow sugar is actually helpful in our body, you just have to consume in moderation.

  • Library Spinster

    The amount of glucose needed by a diabetic to get blood sugars in range when having a hypoglycemic reaction is fairly small. Drinking some regular soda (or some orange juice) is one way to get sugar into the body quickly. Some diabetics carry a small amount of icing. I carry a roll of glucose tablets, available in almost any drug store. So far, two or three tablets (and resting for 15 or 20 minutes) has done the trick.

    For myself, I do watch what I eat and I spend more time reading food labels than I used to. A few months ago, I bought some ginger tea in a produce shop. It wasn’t until I got the cellophane off the box that I noticed it said “low in sugar”–meaning it *had* sugar in the first place. (Ended up donating that tea to the office).

  • Angela

    As a seemingly informed consumer of research and statistical methodology, I am quite surprised by Nestle’s stance on this topic. While there is a wealth of research pointing out a correlation between soda consumption and diabetes and other health issues, I am unaware of any research that shows that soda consumption *causes* these health issues. Though these correlations are admittedly “certain,” it seems at least equally plausible that some other underlying factor is causing increased rates of obesity. For example, do people in these low-income, soda-consuming areas also consume more calories overall? Have poorer health care? Exercise less frequently? Suffer from higher rates of stress? Unless researchers control for these and other potentially related factors (and better yet, conduct an experiment with random assignment), determining public policy based on these limited correlational findings seems more indicative of someone “drinking the Kool-Aid.”