On the eve of the implementation of one of New York Mayor Michael Bloomberg’s most controversial laws -- limiting the allowable size of sugary drinks sold in the city -- Justice Milton A. Tingling, Jr., of the New York State Supreme Court, sided with the law’s challengers, including the National Restaurant Association, the American Beverage Association, and the Soft Drink and Brewery Workers Union, overturning the Portion Cap Rule, aka the Soda Ban. Chiding the mayor, the Board of Health, and the New York City Department of Health and Mental Hygiene (DOH) for circumventing the proper legislative channels, the decision was nothing less than a direct smackdown of Bloomberg’s “go-it-alone” style of governance.
The now-invalidated law was, according to the mayor’s office, the board, and the DOH, designed to lower the consumption of “sugary drinks,” and in turn lower the rate of obesity. In general terms, the law banned the sale of sugary drinks sold in cups or containers larger than 16 ounces. But, as its detractors quickly pointed out, the law was far from a panacea for the city’s obesity problem.
First, what fell into the “sugary drink” category was itself a matter of debate, as the definition includes only non-alcoholic, sugar-sweetened drinks with more than 25 calories per eight ounces of fluid, and specifically excludes beverages with a 50 percent or more milk or milk substitute content. So despite the calorie count in 16 ounces of a McDonald’s McCafé Chocolate Shake (700), Starbucks’ Double Chocolaty Chip Frappuccino (410), or a standard margarita (500+), sale of these drinks could continue unimpeded. Second, there was a consistency problem. While restaurants, theaters, and food carts would have to get rid of their giant sizes, other businesses -- mainly grocery stores, convenience stores, bodegas, and 7-Elevens -- would not fall under the regulation’s jurisdiction. So while a New Yorker like myself would no longer be able to buy a 32-ounce Coke at a movie theater concession stand, I could still theoretically -- and this is entirely theoretical, as I would never engage in such nefarious behavior -- buy a mondo soda at the bodega next door, stick it in my purse, and sip on it through the latest Mark Wahlberg flick. Finally, as Tingling was sure to point out, the law also would not have stopped anyone from getting unlimited free refills or “unlimited sugars after purchase.” (Are people dumping extra sugar into their sodas? Is this a thing?)
While these arguments raise some valid points, the exemptions would hardly have rendered the law ineffective. Even though the court eventually found that “the loopholes in this Rule effectively defeat the stated purpose,” rendering the law “arbitrary and capricious,” a closer reading of Tingling’s opinion quickly reveals that his real problem wasn’t with the law’s substance, but with the process through which it was passed.
Widely seen as Bloomberg’s law -- not the board’s or the DOH’s, and certainly not the people’s -- the soda ban was considered by many as part of the mayor’s last push to, as The New York Times put it, “burnish his legacy as he enters the final months of his career in City Hall.” And the court expressed its animus toward Bloomberg’s personal hand in the law from the outset.