New York City's Soda Ban is a Loser

New York City's ridiculous soda ban had its final day in court this week. Here's why the state's highest court should strike down the ban.

Sodaemily_grace / FoterThis week the New York State Court of Appeals, the state's highest court, heard New York City's appeal of the city's soda ban. The ban has already been soundly rejected ("slammed down," as one New York news station puts it) by two lower courts in the state. It's also faced furious opposition from millions of New Yorkers and Americans around the country of all political and ideological stripes, and has served to galvanize the cause of food freedom like perhaps no other issue to date.

This week's hearing served as a reminder that the ban may be on its last legs. If the Court of Appeals upholds the lower court rulings, then the ban is as dead as I predicted it likely would be back in August.

The particulars of the case heard by the court this week revolve around a question of whether, under New York state law, an administrative agency such as an unelected city health department has the authority to put in place a regulatory ban like the one New York City's health department adopted in May 2012.

Both lower courts said the city did not, and said so rather firmly. Each ruled the ban was an arbitrary and capricious prohibition adopted by an unelected health board whose members were all appointees of then-Mayor Michael Bloomberg. In New York State (as elsewhere in this country), it's elected officials who have plenary power to make law.

In that sense, many of the ramifications of the soda ban case will stay within New York's state borders.

“It’s a test case, but it’s really only a test case for New York,” I told Politico earlier this week. “It’s not really like a food issue per se; it’s just whether the health department and Mayor [Michael] Bloomberg and now Mayor [Bill] de Blasio have overstepped their authority.”

And they have.

If New York City loses this case, as expected, I anticipate de Blasio will attempt, as he's suggested he may, to gauge city council interest in passing a similar ban through legislative means. This would negate (at least in theory) some of the state courts' concerns about health department overreach.

I doubt strongly that the city council would bite--given how unpopular the ban is with both the council and the people who elect them. But in the unlikely event of a city council vote in favor of a soda ban somewhere down the road, then I suspect some or all of the diverse parties to the present lawsuit—groups representing unions, beverage makers, and minority businesses—and others would sue the city in federal court to block such a law. In doing so, they'd be both within their rights and standing up for theirs, mine, and yours.

Hypotheticals and the nuances of New York State administrative law aside—and setting aside the fundamental food freedom argument I've made against the ban time and time again—it's important to remember an important reason that New York City's soda ban was a born loser.

That reason? The city has failed to state even a rational basis for the law, suggesting any specific or even general notions about whether—or how much—the soda ban would actually achieve its goal of reducing obesity. The one study the city initially cited in support of the ban, a 2005 Annual Review of Public Health journal article titled "Economic Causes and Consequences of Obesity," suggests that soda is not the cause of rising obesity rates. "The published evidence, although not conclusive, suggests that technology may be primarily responsible for the obesity epidemic.” In other words, the city health department based its soda ban on a study that found iPads and Xboxes were the likely causes of rising obesity rates.

Consequently, you won't find the city predicting anywhere (or, at least, anywhere I've seen) how its soda ban would translate into better health outcomes. Like its deficits in terms of legality and freedom, the science in support of the ban just isn't there.

But that hasn't stopped the city from claiming otherwise.

“The category of (banned) products is based entirely on scientific evidence,” city attorney Richard Dearing argued before the Court of Appeals this week.

Hogwash.

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  • Ted S.||

    In New York State (as elsewhere in this country), it's elected officials who have plenary power to make law.

    Except at the federal level, where Congress has delegated this authority to unelected executive branch flunkies.

  • Almanian!||

    What Ted said.

  • LiveFreeOrDiet||

    "It's a woman's (obese) body."

  • Zunalter||

    "NYC out of my Pepsi"

  • LiveFreeOrDiet||

    Nice! Better than mine.

  • emma422||

    its awesome,,, Start working at home with Google. It’s a great work at home opportunity. Just work for few hours. I earn up to $100 a day. I can’t believe how easy it was once I tried it out. www.Fox81.com

  • Fist of Etiquette||

    But in the unlikely event of a city council vote in favor of a soda ban somewhere down the road, then I suspect some or all of the diverse parties to the present lawsuit—groups representing unions, beverage makers, and minority businesses—and others would sue the city in federal court to block such a law.

    The important thing is that government attorneys have spent and will continue to spend a lot of taxpayer resources in efforts to allow bureaucrats to remove choices from taxpayers.

  • Fist of Etiquette||

    The city has failed to state even a rational basis for the law...

    I fail to see one, too. I mean, usually these things are done to steer consumers to favored businesses or to increase public revenue in some fashion. But what's the point of this? To get a foothold into a new area of regulation? To test the waters? There has got to be a self-serving reason.

  • mr lizard||

    "There's always vanity"

  • mr simple||

    Just to prove what they can ban? If they can ban something as arbitrary as drink size, what can't they ban?

  • Almanian!||

    Warty. No power in the universe can band Warty.

  • Almanian!||

    Or ban him, for that matter

  • ||

    There has got to be a self-serving reason.

    SWPLs hate fatties.

  • mr simple||

    Fat shaming is ok when the proggies do it.

  • C. Anacreon||

    The funny thing is, had they approached this as a fat-shaming campaign they could have done so and actually reduced the consumption of high-sugar beverages for a fraction of the cost of these legal actions, and not violated any freedoms. In my lifetime I've seen the world go from 'practically everyone smokes cigarettes' to 'practically no one smokes cigarettes', and much of that was done by peer pressure rather than by an outright ban. (OK, they've banned the ability to light up in far too many places, but the movement was well on its way without the need for this, and there's still no law against the purchase of cigarettes, at least yet).

    I still think a poster showing a gooey ice-cream sundae and a 32-oz coke side-by-side saying "same calories, your choice" would do wonders. I still talk to people all the time who are under the delusion that you can't gain weight from what you drink, only what you eat.

  • Paper Wasp||

    Food is only evil when it's something poor people like.

    McDonalds evil! Soda evil! Taco Bell, KFC, Doritos, Hostess cupcakes...all evil! Bad poor people! Baaaad, eating inexpensive fattening food!

    Oh, but foie gras, grass-fed food-truck $12 burgers stuffed with deep-fried brie, organic lard, and topped with sriracha mayo before being capped by a buttered brioche bun...oh, those are fine. Obesity is acceptable if your name is Mario Batali. We're not going after your favorite hipster caloric binges; we're not gonna slow the consumption of your single-sourced chocolate ganache cupcakes, Thai crab wontons, or duck-egg custard-filled cronuts. Oh, no! That would be culturally insensitive.

    But just so you know: your junk food must cost a minimum of $10 per serving, and come from an approved source, before it will be cool enough for you to get obesity from.

  • Almanian!||

    Because "fuck you", that's why?

  • Francisco d'Anconia||

    It's also faced furious opposition from millions of New Yorkers

    Yet, New Yorkers keep electing those that are in favor of such policy?

    Hmmm?

    *rubs chin*

  • Rhywun||

    We may be against soda bans, but we're still for free shit.

  • Robert||

    You don't get to pick & choose the individual positions of the combination package you get with each elected official, nor how that official's positions square vs. those of the one who'd likely be elected if that one weren't.

  • Sheriff Bart||

    Get back to me when those loathsome bureaucrats add the lattes to the list. They won't, because they and their elitist friends buy them, unlike the rabble they disdain.

  • ||

    Exactly. Go after Starbucks and then come see me.

    But progressive fascists just love their expensive coffee.

  • Virginian||

    expensive coffee

    You know a cup that contains 4oz of espresso and 20 oz of cream, sugar, syrups, etc. isn't exactly coffee.

  • ||

    It's really not that expensive either.

  • From the Tundra||

    But definitely disgusting.

  • Virginian||

    See, I hated black coffee. But I forced myself to drink it because that's how a man drinks coffee. Lo and behold, now I like it. I figure it's an acquired taste, like hard liquor or oysters.

  • From the Tundra||

    My Italian grandmother started me (very young) on coffee with milk and sugar. By the time I was in middle school, it was straight up, strong black coffee. I thanks her every morning for my favorite addiction.

    And yes, there is no reason to adulterate good coffee.

  • From the Tundra||

    *thank*

    Damn shakes...

  • ||

    Tax or Commerce Clause?

  • Lady Bertrum||

    OT: fuck,fuck,fuck,fuckity,fuck

  • Crusty Juggler||

    I concur.

  • mr lizard||

    Sqrls are up early for you I see?

  • ||

    Sounds pretty on topic to me.

  • ||

    I just don't get the 'limit the size' angle at all. You can get just as much calories out of something half the size of the what's being banned. I bet there's little empirical evidence that shows limiting the size of something to health choice.

    To me it just a dickish thing to do to people. 'You want the super size? Well, you can't have the super size because I said so!"

  • Notorious G.K.C.||

    it's not the size, it's how you use it, lol

    youvebeenawonderfulaudience.com

  • Crusty Juggler||

    When you have a body like former Mayor Bloomberg you have earned the right to tell people what they can and cannot put in to their bodies.

  • Notorious G.K.C.||

    Pope Francis praises one of the elusive good cops:

    http://www.ewtnnews.com/cathol.....p?id=10117

  • Notorious G.K.C.||

    Those wacky Renaissance military manuals:

    "Create a small sack like a fire-arrow ... if you would like to get at a town or castle, seek to obtain a cat from that place. And bind the sack to the back of the cat, ignite it, let it glow well and thereafter let the cat go, so it runs to the nearest castle or town, and out of fear it thinks to hide itself where it ends up in barn hay or straw, it will be ignited."

    http://news.nationalgeographic.....y-history/

  • Notorious G.K.C.||

    Can the Disney movie be far off?

  • Rich||

    Yet another reason to ban backpacks.

  • Notorious G.K.C.||

    The NY Times continues its hard-hitting attacks on Mrs. Clinton

    "In Memoir, Hillary Clinton Emphasizes Her Softer Side...

    "In her new book, even as she lays out her foreign policy vision, Mrs. Clinton shows a side of herself that campaign did not: human, motherly, jokey, self-deprecating....

    "She opens a chapter about American relations with Europe with a Girl Scouts song from elementary school. (“Make new friends, but keep the old.”) And she describes answering questions in South Korea about how she deals with “misogynistic leaders” and how would she “describe love.” Of that event, Mrs. Clinton writes, “It seemed that these women felt connected to me in a personal way.”

    "They treated her, she said, “as though I was a friend or mentor, rather than a government official.”"

    http://www.nytimes.com/2014/06.....share&_r=0

  • Virginian||

    paging Barfman

  • Rich||

    "Corn: The Weed With Roots In Hell"

  • x4rqcks3f||

    a 2005 Annual Review of Public Health ... suggests that soda is not the cause of rising obesity rates. "The published evidence, although not conclusive, suggests that technology may be primarily responsible for the obesity epidemic.”

    Technology to suppress free will does exist: clubs, knives, guns, etc. I've yet to observe an obese person chowing down under the fear of such tools.

  • Rich||

    "The published evidence, although not conclusive, suggests that technology may be primarily responsible for the obesity epidemic.”

    What a load of weasel-worded bullshit.

  • Notorious G.K.C.||

    "A 'product of rape,' Miss USA hopeful now educates on sexual assault...

    “Being a child of a rape, not knowing who my father is, not knowing if he’s ever been found, most people would think it’s such a negative situation....I believe God put me here for a reason: to inspire people, to encourage them, to give them hope that everything is possible and you can’t let your circumstances define your life.”

    http://www.today.com/style/pro.....2D79756426

  • Notorious G.K.C.||

    rape-babies!

  • Virginian||

    http://www.ksat.com/news/paren.....y/26332792

    Sunscreen is a toxic substance, according to the people educating the children.

  • Virginian||

    http://www.therepublic.com/vie.....Overturned

    Wow, you mean accused rapists have due process rights?

  • Virginian||

    http://bostonherald.com/news_o.....saugus_mom

    “Her entire family is standing behind her, but this is alleged to have occurred in the community where they live, go to the grocery store and go to school, so it’s a very trying time for them.”

    Trying to imagine the reaction if the 38 year old was male and the 15 year old was female.

  • Rich||

    Just imagine the reaction:

    “(W)hen I looked at her, she did not act like a 15-year-old … she acted like a grown woman,” he told police.

  • Notorious G.K.C.||

    "Salines claimed the boy came up with the scheme to get a hotel room, because “they would never be alone because her daughter was always at the house when they were there,” according to the police report."

    Just wait until you parents are away on vacation, then hold an awesome party with your friends, then sneak into the guest bedroom...

    Wait, *you're* the parent...omg this is weird.

  • Francisco d'Anconia||

    A beautiful woman cannot rape a 15 yo boy.

    That is all.

  • ||

    ^THIS^

    Wait, is that insensitive to victims?
    /sarc

  • Paul.||

    A married mom betrayed her family’s trust by having sex with her daughter’s teenage friend in a hotel room and a parked car before swapping the nude selfies that were her undoing, authorities said.

    *facepalm*

    Once those bits leave your device, you're no longer in control of them.

  • politicsbyothermeans||

    Niiice.

  • Curtisls87||

    I noted that her bail was $7,500.00. Again, imagine what bail would be if the sexs were reversed.

  • Virginian||

  • Francisco d'Anconia||

    What? Isn't it illegal for the child to even own a toy gun? Why hasn't the school reported the child to the proper authorities?

  • Virginian||

    http://www.newser.com/story/18.....-soar.html

    In a Single Year, Basic Hospital Prices Soar
    AND EXPERTS AREN'T SURE WHY

    I have an idea or two.

  • Rich||

    Still, more broadly, "it just isn’t clear what has gone into the increase in hospital charges for the past decade," says an expert.

    "My fellow experts and I will just have to keep doing lots more studies and analyses, the costs of which will be passed on to patients. Hmmm. Wait .... Something just became a little clearer!"

  • ||

    Bush?

  • Paul.||

    Close. Deregulation.

  • Sevo||

    "Must agree to have sex
    Affirmed consent is defined as an "unambiguous and conscious decision by each participant to engage in a mutually agreed upon sexual activity" with the consent ongoing throughout."
    http://www.sfgate.com/news/art.....535057.php

    Is this form "Sc-rew U" or what is it exacty? Well, it's our legislators "doing something".
    From the comments:
    Rat_Bastard
    "I cans see these written contracts coming back to haunt people in their futures. [...] Imagine a stack of your signed consents with multiple people resting on your doorstep, or maybe someone saying for X amount of $$$ they won't end up where you don't want them to end up. The possibilities are endless."

  • Virginian||

    Imagine a stack of your signed consents with multiple people resting on your doorstep, or maybe someone saying for X amount of $$$ they won't end up where you don't want them to end up. The possibilities are endless."

    Only Enemies of the People will have that happen to them. You're not an Enemy of the People, are you?

  • LarryA||

    Don't know how they do it in NYC, but down here they take a big cup, fill it with ice, then add the drink.

    It would be interesting to see which actually contained more beverage, a 20oz bottle or a 44oz fountain drink.

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