by Marion Nestle
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

  • Marion
    The judge had other issues from the initial decision you did not address. Did they get answered yesterday?

    “Tingling found first that, like the indoor-smoking rule, the regulation was “laden with exceptions based on economic and political concerns,” which are outside the Board of Health’s purview. Next, he concluded that the powers granted to the health department by the New York City Charter (from its origin in 1730 through more than a dozen amendments to date) did not grant the board “the authority to limit or ban a legal item under the guise of `controlling chronic disease.’”2 Third, the judge found that that city’s legislature, the New York City Council, had not passed any laws addressing the subject matter. The judge’s bottom line is that the health department violated the separation-of-powers doctrine by exceeding its authority as an administrative agency and acting like a legislature.”


  • Anthro

    The “ban” is only on a portion size, not on a “legal item”.

    An external form, appearance, or manner of presentation, typically concealing the true nature of something.

    How is trying to slow the progress of a debilitating disease that will not only cost billions over the next generation, but possibly shorten the lives of sufferers a “guise”. The “true nature” of the size ban is to relieve human suffering, no guise, no nothing, just good public health policy.

    NO ONE will be deprived of continuing to consume as much soda as he or she desires; it will simply give people a chance to pause, and maybe decide that one reasonable soda is enough.

  • Exactly agree with Anthro. I’ts just amazing how much sugar (among other things) we consume without even knowing about it! It seems that all that’s important is how much money can be squeezed out of people and bugger the consequences.

    “Keep them ignorant and uninformed” seems to have been the modus operandi for several decades now. And we as consumers just accept that. Well, we shouldn’t. While I agree that what we consume (and in what quantity) is our responsibility, I think it’s only fair that we are warned when such quantities/ingredients can pose real health risks.

    I mean, have you read the labels of some foods? I’ve never even heard of half the stuff, and often “sugar” is disguised with some other “-ose” ingredient. Full disclosure = Fair’s fair in my opinion.

  • David Mattheisen

    You and your ilk don’t like soda? Simple solution. JUST DON’T DRINK IT!

    You and your ilk don’t like certain types of foods? Simple solution. JUST DON’T EAT THEM!

    Just stay the hell out of my and other peoples’ diets! I am sick of you people wanting, nay, NEEDING to meddle in others’ affairs.


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  • Maureen Beach

    Obesity is complex and is influenced by a number of factors (such as age, genetics, stress, physical inactivity, etc.). To assign blame to one source of calories is not only incorrect and not based in science, but it’s counterproductive. If we want to get serious about the problem, it starts with education – not laws and regulation. What you eat, drink and feed your family is your choice and does not need government control, oversight or influence.

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  • William S Kilgore

    NOTE TO THE VOTERS OF NYC – you continue to put the left-wing political hacks in office that come up with these moronic rules – the rest of the nation (with the exception of Kookifornia) no longer have any sympathy for you.

  • Sani Fornus

    NYC is governed by clubhouse political hacks/union stooges who want to control every aspect of a citizen’s life. I want my freedom back.