Why Bloomberg’s soda ban fizzled
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.
“No mention is made in the Respondents’ moving papers as to who drafted the proposed rule. Petitioners assert and it is not refuted, that the Mayor’s office proposed the Rule, verbatim, to the Board.”
The court’s obvious frustration continues, as it notes that despite the stated purpose to combat New York City’s “obesity epidemic,” “the words ‘epidemic’ and ‘obesity’ are neither examined nor explained as much as they are stated as fact.” Even after reviewing the supporting science, including a 2004 Harvard University study showing that “women who drank one or more sugary drinks per day had an 83 percent greater risk of developing type 2 diabetes than women who infrequently consumed sugary drinks,” the court chose to leave the connection between obesity and sugary drinks as an open question.
The main problem with the law, as the court saw it, is not that it might be “futile” as the challengers argued, but rather that the board and the DOH — and clearly by extension, the mayor — “exceeded their authority and impermissibly trespassed on legislative jurisdiction.” In other words, lawmaking is not a one-man show — not even if you’re Michael Bloomberg.
Focusing on three factors,* the court determined that passage of the law had “run afoul of the separation of powers doctrine.” First, because of the cited health savings (New York City spends more than $4.7 billion on obesity-related health expenditures) and the 7-Eleven exemption, Tingling found the law to be “laden with exceptions based on economic and political concerns.” Second, after a review of the New York City Charter dating all the way back to the first one drafted in 1686, the court concluded that the board’s power to supervise and regulate the city’s food supply was limited to specific situations, “i.e., when the City is facing eminent [sic] danger due to disease.” Third, because the New York City legislature has tried — and failed — to regulate sugary beverages in the past, Bloomberg effectively usurped the democratic process to impose his own will.
In layman’s terms: Screw you and your big ideas, Mr. Mayor. You either play by our rules or you don’t play at all.
Every single one of the factors listed above could have gone the other way. An economic impact could have been seen to strengthen the law’s validity, not weaken it; and Tingling should have recognized that the 7-Eleven exemption is not the result of a political calculus, but rather due to the fact that, because its revenue is primarily from sales of items other than ready-to-eat food [PDF], 7-Eleven falls under the regulation of the Department of Agriculture and Markets and not the Department of Health. The city’s obesity problem could have been classified as a disease posing an “eminent [sic] danger” to the city, even if just an economic one: It spends almost $5 billion annually on the 23.7 percent of New York City adults and 40 percent of New York City schoolchildren suffering from obesity. The earlier failed attempts at legislation — soda taxes and removal of soda from vending machines — could have been distinguished enough from the current one to allow its implementation.
The press is focusing on the “arbitrary and capricious” finding, but as Tingling makes clear, a good law is not just an effective one; it’s one that has passed through the required democratic processes — as frustrating, imperfect, and time-consuming as those may be.
Bloomberg is often lauded as a visionary — a tenacious leader who can drown out the din of opposition and get the job done. But that din is part of the democratic process, and as the New York State Supreme Court made clear on Monday, it cannot be bypassed by any single person or group, no matter how well-intentioned or scientifically driven the idea may be.
Whether we want to stop the Keystone Pipeline, label our GMO-filled foods, or end our reliance on coal, we need more than just good data. Healthy food advocates need to recognize that in a democracy, for better or for worse, facts and science cannot do the job alone. We need to build consensus on these issues, participate in the democratic process, and yes, sometimes even compromise.
* Correction: This article originally stated that the court struck down the law based on four factors, the fourth being that despite the submission of supporting scientific evidence after the rule had been written, its origins in the mayor’s office meant it didn’t have the requisite expertise behind it. While the court found serious fault with this part of the process of the writing of the regulation, it did ultimately find that it met the expertise requirements.