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Critics, including especially me, had criticized the alleged "science" upon which the health department relied prior to its adoption of the ban. As I wrote in comments Keep Food Legal filed in opposition to the ban before it was adopted, "the only evidence [the health department] cites as support for... its proposed ban is a 2005 Annual Review of Public Health journal article. Yet the cited article... merely cites in pertinent part an earlier study concluding 'that technology may be primarily responsible for the obesity epidemic.'”
As I then wrote, "the study that [the health department] has used as the very foundation of its proposed ban offers little or no support for banning soda of any size, and might better be used to support a ban on iPhones, televisions, or public transportation."
It’s not difficult to find support among straphangers for Judge Renwick’s decision.
New Yorkers interviewed by local news station NY1 this week were unanimous in siding with the court.
George Washington University Law School Professor Jonathan Turley questioned Mayor Bloomberg's wisdom in deciding to appeal the latest ruling, calling the soda ban "a law that is not only paternalistic but utterly unconstitutional."
Turley, who last year called the ban "facially absurd," labeled it this week "the ultimate example of the 'Nanny state' where the government dictates the proper lifestyle choices and risks for adults."
And he blasted the ban as a scheme designed "to take away choice and to dictate Dr. Bloomberg’s diet for all citizens."
My only immediate criticism of Judge Tingling’s ruling in March riffed along those same lines. I wrote then that “I’d like to see the court being more vocal in defending people’s rights to make their own choices[.]"
Judge Renwick has done just that. In her decision, she writes that the ban "infring[es] on individual rights" and "manipulates choices to try to change consumer norms."
"Instead of offering information and letting the consumer decide," she writes, "the Board’s decision effectively relies upon the behavioral economics concept that consumers are pushed into better behavior when certain choices are made less convenient."
But Judge Renwick also took pains to note that her ruling did not preclude future "soda consumption restrictions, provided that they are enacted by the government body with the authority to do so." That, we are left to presume, would be New York's elected City Council.
But Turley, the George Washington University Law School professor, isn't optimistic that route would be any more successful, writing it "would trigger another constitutional challenge."
Thankfully, time is running out for the mayor. After all, Mayor Bloomberg’s mayoral carriage of nearly 12 years is nearly ready to turn back into a pumpkin. His term in office ends just 150 days from today.
And, as I wrote last month, none of Bloomberg’s likely successors as mayor support this ban. That means Bloomberg is likely throwing taxpayer money hand over fist into this series of appeals in an effort to resuscitate a rule that five judges have already found to be patently unconstitutional and which the person who succeeds him in office is likely to revoke even Bloomberg’s last-gasp court efforts were to succeed.
We’ve heard a good deal recently about how New Yorkers don’t quit. That’s an admirable trait to a point—a point that Mayor Bloomberg has long since passed.