Soda Ban

The Real Impact of the NYC Soda Ban's Well-Deserved Defeat

Public health activists in New York City and beyond will feel the sting from the defeat of the city's misguided soda ban. And that's a good thing.

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Soda
Marlith / Wikimedia Commons

Last week, the New York State Court of Appeals—the state's highest court—dealt a final death blow to New York City's reviled soda ban. The decision, which upheld two lower court rulings, drew an important line in the sand across which New York City's activist health department may no longer cross.

Like the lower courts before it, the high court held that the city's health department, an unelected board appointed by then-mayor Michael Bloomberg, violated the state constitution by exercising legislative powers it does not possess in order to enact the soda ban. That's important, because it means that the city's health department, which previously banned trans fats, for example, may no longer make law and policy choices without prior legislative guidance. The court also ruled that the soda ban was discriminatory in its impact, since many places that sell large sodas, including 7-Eleven, were exempt.

While the lower courts had ruled unanimously against the ban—first in a one-judge decision, and later in a three-judge appellate decision—the state high court ruling was a 4-2 decision (with one judge abstaining).

Though, as I note, the majority decision largely reiterates the strong denunciation by the lower courts of New York City's soda ban, the dissenting opinion issued by the court last week is worth a look for the unprecedented lengths it goes in a failed attempt to justify and uphold the soda ban.

To do so, the dissent, authored by Judge Susan P. Read, argues that rules adopted by the city health department are on par with state law.

"[Its] authority to regulate the public health in the City is delegated by the New York State Legislature, and its regulations have the force and effect of state law," writes Read.

That's a positively bizarre argument. After all, state law trump the laws of any one city. Under Judge Read's theory, the rules enacted by the unelected city health department carry greater force in New York City than those laws passed by the mayor and city council. Effectively, Read would give the health department veto power over all New York City laws that have any bearing on public health.

While that may sound like a stretch, Read actually embraces this characterization in her dissent.

"If a regulation promulgated by the Board in the Health Code conflicts in some direct way with a local law, the Board's action trumps the [City] Council's," she writes.

That's downright chilling. Under that interpretation, the health department would have the authority to mandate any number of health-related rules by which city residents must abide. The health department could, for example, mandate early bedtimes for New York City residents. The city never sleeps? It does now. And the city council would be completely powerless to do anything about it.

What's more, a mayor at odds with the city council on any number of health issues could simply ignore the council's judgment on those issues and ask his health department to pass rules the city council adamantly opposed. In practice, that's exactly what happened with the soda ban—a law then-Mayor Bloomberg found the city council unwilling to pass.

In her dissent, Read also discusses New York City's first-in-the-nation trans fat ban. She argues that because the city council enacted the trans fat ban before the legislature later adopted rules implementing the ban, that gave the health department a green light to adopt the soda ban.

That's one way to read the rule. But I don't think it's the right way to read it. Another way to read it is that the New York City trans fat ban was unconstitutional when it was adopted by the health department. Still another way to read it is that the city's trans fat ban may still be unconstitutional. I think a strong case can be made for the latter reading I suggest. But I think the former reading—that the trans fat ban was unconstitutional on the day it was adopted, and that any similar future ban enacted by the health department would be unconstitutional, too—is now settled law.

The legal reach of the soda ban's defeat technically stays within the jurisdiction of the New York State courts. But the ruling nevertheless has national ramifications.

New York City health department rules often find their way elsewhere around the country. Right now, for example, the FDA is attempting to copy New York City's trans fat ban. The less power the city's health department has to make bad food rules, the fewer such rules we'll see elsewhere in this country.

The New York ruling also comes as two states have similarly rebuffed recent efforts to crack down on soda sales. The California legislature rejected an absurd proposal to slap warning labels on soda, while the Illinois legislature rejected a soda tax. Collectively, these developments should be seen for what they are—as victories for consumers, beverage makers and sellers, and supporters of food freedom alike.

New York City's soda ban is dead. For good.

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  1. My blood pressure would be a lot lower if I didn’t constantly have to listen to these control freaks trying to run everybody’s lives. I’m sure I’m not the only person whose blood pressure is raised by these nannies’ proposals, and it can’t be good for public health.

    So the nannies need to be forced to shut up, for the public good.

    1. If you think Patrick`s story is impressive…, five weaks-ago my son in law earnt $8989 workin 40 hours a month from their apartment and the’re neighbor’s mom`s neighbour done this for 3 months and made more than $8989 parttime on there pc. apply the guidelines on this site works33.com
      (Go to site and open “Home” for details)

      1. Wow, that’s hot! Can I bring over some pals and triple penetrate you? Don’t worry, everyone cries the first time?

  2. Thanks, TED. You reminded me to take my BP meds.

    1. I don’t know why Ted keeps auto-capitalizing on my iPad. It’s almost as if the auto-correct is left-leaning or something.

  3. The health department could, for example, mandate early bedtimes for New York City residents.

    Too extreme. Just stick with the implanted odometer-like REM monitors.

  4. Oh, and why did none of you motherfuckers tell me about the Skyrim mod that changes all the dragons into trains from Thomas the Tank Engine? That shit is GOLD!

    FOR SODORGARDE!

    1. 😎

      “Thomas! I thought you were my friend!”

    2. You also need the one that changes all the fight music to “Danger Zone” by Kenny Loggins:

      http://steamcommunity.com/shar…..=199219620

      1. Sterling Archer approves.

    3. I’d be remiss if I didn’t inform you of a Skyrim mod that changes the dragons’ heads and voices to those of the Macho Man Randy Savage.
      http://youtu.be/Bifmj1O3D24

  5. The California legislature rejected an absurd proposal to slap warning labels on soda

    Instead, in order to vote/drive/procreate/whatever, everyone must read and sign a comprehensive health-warning document.

    1. Rich|7.5.14 @ 9:02AM|#
      “The California legislature rejected an absurd proposal to slap warning labels on soda”

      This was some mistake or other. Maybe there was a rider on it that cut taxes by $0.0001 or something.
      No way would something like this fail to pass in the CA sate legislature.

      1. I’m shocked that the NYC council wouldn’t pass a soda ban. They are basically an organ of the Communist Party at this point.

        1. Yep, and we all know which organ.

        2. This country needs a new Red Scare in the worst way.

          1. Pretty sure we’re getting it in the worst way…

    2. Sadly, this company appears to have gone belly up before its time:

      http://web.archive.org/web/200…..howto.html

      ConsentCondom.com

      Basically a condom that comes with a fingerprinting kit.

      1. Ooops. Documenting consent with consent condoms offends feminists too.

        http://factcheckme.wordpress.c…..t-as-fuck/

        I guess since it is offensive to even get consent in writing too, getting laid today is the equivalent of cutting the green wire or the red wire. Choose incorrectly and your life goes boom.

  6. “If a regulation promulgated by the Board in the Health Code conflicts in some direct way with a local law, the Board’s action trumps the [City] Council’s,” she writes.”

    If you go to bed early, eat your fruits and veggies you have nothing to worry about! The health board doesn’t care about you so get over yourself. It just needs to protect the society. SO-SY-YETI!

    1. nice:)

  7. “If a regulation promulgated by the Board in the Health Code conflicts in some direct way with a local law, the Board’s action trumps the [City] Council’s,” she writes.

    In P Brooks -topia, judges would be expected to know and understand the law. And “judicial deference” would be to freedom.

    Kkkrazy.

    1. I don’t even understand the relevance of the quoted material. The regulation didn’t conflict with any local law AFAIK.

  8. I waded deep into the Fbook Derp this morning about the Opie and Anthony firing by Sirius. I need one of those chemical lab emergency showers.

  9. Just Curious…

    I was recently diagnosed with Aspergers and have come to realize that some of my symptoms, such as a need for consistency, logic, and my disdain for appeals to emotion and adherence to authority all coincide with my penchant for libertarianism. I was curious if anyone else out there has any similar experiences with Aspergers or high functioning autism and credit it in part to their political proclivities?

    1. I think it would be a mistake to chalk proclivities for libertarianism up to an autism spectrum disorder.

      I can see how some aspects of libertarianism might be more attractive to people who are Asperger advantaged, but there are also plenty of non-Asperger libertarians who are put off by the extreme logically consistent aspects of libertarianism.

      A lot of libertarians are, for instance, thoroughly put off by Randian systematic logic. So, no, I don’t think libertarianism is especially attractive to people with Aspergers.

      My understanding is that people with Aspergers can become fundamentally obsessed with things like model airplanes, baseball statistics, or really anything else. If I put libertarianism on that list, it makes the list of things Asperger people get into seem even less feature-consistent.

      1. “My understanding is that people with Aspergers can become fundamentally obsessed with things like model airplanes, baseball statistics, or really anything else.”

        If you were into baseball with Aspbergers, isn’t it likely that you would be into baseball without it?

        Maybe your appreciation of it would be qualitatively different–or maybe it wouldn’t. There are people into baseball statistics that do not have Aspbergers.

      2. Yes, I have had a lifetime obsession with meteorology and precision/order (I manage a laboratory which fits in nicely with my interest in science and inner need for repetition and accuracy). Thanks for the response, it never occurred to me that some might come to libertarianism for the exact opposite reasons it appeals to me. It makes perfect sense, and illustrates my inability to make sense of motivations that wouldn’t adhere to some form of rigid consistency.

        1. And yes, I would like to believe I would be interested in the same things sans the Aspergers… but I believe the narrow focus and obsessive nature of my interests would render a qualitative difference in the expression of said interests.

    2. ” I was curious if anyone else out there has any similar experiences with Aspergers ”

      Yes, I do, I’ve many times been around people who got shitty diagnoses from crap doctors then used it as justification.

      You asked if anyone had “similar” experiences, sorry if mine is instead exactly descriptive of yours.

    3. Well, I think it would indeed a mistake to link the two but people on the autism spectrum do share those traits.

      I’m a lot like you described and to me, sounds like it fits a few guys on this site. However, I’m not diagnosed with Aspergers though I’m definitely ADHD. I have literally hundreds of links, articles, periodicals and books I collect I’ve yet to read the procrastination sometimes overwhelms.

      Not only that, I have an inventory of soccer/sports stats I obsessively compile. I like to collect data. If I had more focus and access to info. I could have made a living at it. Instead, I comment on Reason.

      Meh.

      1. ‘I’ve collected.’ There you go. One of my problems I’ve always endured going back to grade school is I don’t check my work.

        My daughter is showing signs of this. We’re working hard to keep her focus. It’s the difference between her getting consistently 90-95s as opposed to 85-90. It bugs me that she’s losing marks for carelessness.

        1. Can you “engineer in” easy ways to check your work? I work as a data/reporting analyst, so getting my numbers right is kind of a big deal. I do daily and bi-weekly sales reports, and it eventually dawned on me that I could add in a few extra sum totals to be a quick cup check on my numbers. If they tally, it’s not a 100% guarantee everything is okay, but if they don’t – it is a guarantee something somewhere is wrong. I was able to track down a lot of issues quickly after ding this.

          I realize different processes demand different methodologies, but there are a surprising number of tools out there. For example, for schoolwork, there’s a website that can check to insure there is no uncredited work in a paper. It’s mainly used to check for plagiarism, but a student could potentially use it to double check that they hadn’t omitted something.

          Incidentally, somewhat OT – something I never got was why a student would plagiarize to begin with. Just cite the damn original work. More references makes it look like you worked all the harder. I don’t get why someone would omit them.

      2. Funny you mention procrastination, I also suffer from this but for a specific reason. I know anything I engage in, for which I have a true interest or passion, will quickly become obsessive in my life. To the point I will ignore almost everything else around me to pursue it (groceries, hygiene, sleep, etc…) So I often choose to ignore my interests understanding the chaos that will ensue.

        1. Yeah. Food and hygiene I don’t ignore.

        2. I’ve been like that about some things too. I resisted the Internet for a long time, knowing that if I got into it, I’d get really into it.

      3. “Well, I think it would indeed a mistake to link the two but people on the autism spectrum do share those traits.”

        Part of what I’m trying to get at, there, is the suggestion that anyone’s experience of the world is somehow invalid or not to be trusted specifically because of Aspergers. There are people who will treat you like your view of the world is warped because of it.

        It also becomes an easy ad hominen for a lot of people–the reason you’re a libertarian is because you have Aspergers!

        Actually, the reason I’m a libertarian is because I think people should be free to make choices for themselves. If I had Aspergers, given my personality, knowledge and experiences, I’d still think people should be free to make choices for themselves anyway.

        I understand there are professionals who can help people with Aspergers deal with other people–if that’s something they want. But Aspergers isn’t insanity. You may misread other people more often than most, but that doesn’t make you irrational or insane.

        1. I’ve been said by a friend to be an Aspie. I’m also attracted to the performances of noted Aspie Olivia Dvorak as Poopy Lungstuffing. (Not the other Olivia Dvorak, who is likewise an American singer-songwriter who plays plucked/strummed string instruments.)

    4. I guess your “disdain for adherence to authority” is why you spell “special” that way?

    5. Never mind that aspergers is no longer an official disease and can not actually be diagnosed, I have it too.
      Most people with any form of autism actually have a very low iq, but there is the high iq end and I also have that too.
      My guess would be that the high iq is the more likely culprit for the Libertarian leanings as studies show that the higher the intelligence, the more likely we are to be against government – smart people simply understand more how incredibly evil most of government is.
      So – as a person with aspergers and an iq around 135 (on a good day), it highly offends me that politicians with an iq of 90 think they have a right to dictate ANY of my actions.
      Of course, most truly intelligent people simply have little interest in becoming politicians – we simply have little desire to tell others what to do, which is all that politics really is.

      1. Exactly. By the progtard way of thinking, they should all gave to call me ‘Master’. Biden should be my shine boy.

    6. Aspy’s are a step forward to the next great jump in human evolution. And generally superior to ‘normy’s.

      Therefore one does not chalk libertarianism up to AS, libertarianism is just one of many logical outcomes of thinking from superior minds. As clearly, the finer minds if the normy’s (and judging by these forums a few less fine minds) have arrived at similar conclusions.

      Clearly, the progtard, while devoid of souls, also represents a largely intellectually inferior subset of human thinking. Most of them are the product of an evolutionary dead end. More to the point, an evolutionary dead end in a shitty Detroit neighborhood.

  10. “The health department could, for example, mandate early bedtimes for New York City residents.”

    The progressive sugary soda ban isn’t fundamentally different from Obama’s attempt to coerce business owners into violating their religious convictions.

    Neo-progressives are upset that they can’t force people to do things against their will that violate their religious convictions, but it wasn’t the religious aspect that made what Obama was trying to do wrong.

    It’s using the government to coerce people to do things against their will that’s wrong. Even when it’s legal, it’s wrong. Using the coercive power of government to mandate early bedtimes would be wrong regardless of whether the progressives trying to implement that silliness had a religious motive.

    Religion isn’t the issue; it’s a red herring. Using the coercive power of government is the issue.

    1. I am forced to spend my taxpayer dollars subsidizing religious institutions.

      Do you have a problem with that?

      1. Jennifer O|7.5.14 @ 10:55PM|#
        “I am forced to spend my taxpayer dollars subsidizing religious institutions.
        Do you have a problem with that?”

        Yes and I’ll bet Ken does too.
        In SF, the city gov’t sold the 10sq.ft. of land where the cross is to some bleevers or other; I still pay for the gardeners to maintain the access.
        If that were the worst of SF city gov’t, I wouldn’t mind, but it is sleazy in the extreme.

      2. “I am forced to spend my taxpayer dollars subsidizing religious institutions.”

        Yeah, I’m against taxpayers being forced to support religious institutions.

        Care to be specific about what you mean?

        In what way are you being forced to “subsidize” religious institutions?

        1. “In what way are you being forced to “subsidize” religious institutions?”

          Odds on it has to do with Hobby Lobby NOT covering something.

  11. some of my symptoms, such as a need for consistency, logic, and my disdain for appeals to emotion and adherence to authority all coincide with my penchant for libertarianism.

    Don’t worry. Libertarianism is covered under Obamacare. Take your pills, and embrace Big brother.

    FREEDOM IS SLAVERY.

  12. Hi Baylen, I thought the purpose of your group was at least in part to protect the interests of organic farmers and the food that is sold in farmer’s market, but yet 75% of the articles you write are about soda bans, the merits of shitty food served in schools, and the threat of usda regulation. Is there a reason for this?

    Do you have kids and send them to public schools. If so, do you prepare their lunch at home?

    Do you think it’s worth pointing out in your screeds against the diabolical threat of a ban on soda tubs that such laws actually work in combating obesity?

    Now that Richard Mellon scaife is dead how is the job market and funding levels looking for right-wing hacks?

    1. Is there a reason for this?

      Um…

      …liberty?

      You do realize this is a libertarian site and that libertarians are not right wing, right? I mean, despite, endorsing a philosophy that’s killed 100,000,000 people, you’re not stupid, right?

      1. “you’re not stupid, right?”

        https://www.youtube.com/watch?v=6GHd6vavka4

      2. Commie kid does not want to hear about those 100,000,000 murders! It doesn’t matter! He only wants the good parts of the stuff that murdered 100,000,000! Maybe the part that only murdered 80,000,000.

    2. “but yet 75% of the articles you write are about soda bans”

      So don’t read them.

      “such laws actually work in combating obesity”

      Who cares they curb freedom. And you’re a liar, but even if you weren’t, it’s not relevant.

      “Now that Richard Mellon scaife is dead how is the job market and funding levels looking for right-wing hacks?”

      OOOOH! LOOK HOW MUCH YOUR BUTT HURTS!

    3. You’re obviously not reading the articles that he writes.

      Yes, he supports the right of people to produce and consume organic foods. But, being principled, he rightly supports the rights of people to choose not to be forced to buy them as well as be against mandatory labeling of GMO foodstuffs.

      As FdA notes, Linnekin supports liberty. Socialism is an economic philosophy that forces consumers to make only government-approved purchases. So it’s no wonder you don’t understand.

    4. american socialist|7.5.14 @ 10:32AM|#
      “Do you think it’s worth pointing out in your screeds against the diabolical threat of a ban on soda tubs that such laws actually work in combating obesity?”

      Cite missing, dipshit.

    5. Forced incarceration in concentration camps are even more effective at combatting obesity. You want to mandate that too, comrade?

  13. such laws actually work in combating obesity

    [citation needed]

      1. Oh my god…

        …you are stupid.

      2. Just can’t put two and two together can you?

        (Obviously not…you support murder.)

        Your citation only shows an increase in snacking. It does not show that laws will decrease such, which was what was asked of you.

      3. Snacking Increased among U.S. Adults between 1977 and 2006

        And that clearly proves laws combat obesity.

        By the way, I read the whole study. It doesn’t say what you’re claiming.

        1. http://www.epi.org/publication…..1979-2007/

          Vast majority of wage earners are working harder, and for not much more

          This trend is particularly evident when considering that the majority of workers?especially those in the bottom 60 percent of the wage distribution?increased their work hours substantially between 1979 and 2007

          Would working more not require more energy? So, snacking more maybe? Maybe?

        2. “By the way, I read the whole study. It doesn’t say what you’re claiming.”

          Commie kid isn’t real schmart, so it’s kind of you to point it out to him/her.

      4. american socialist|7.5.14 @ 11:09AM|#
        “http://www.ncbi.nlm.nih.gov/pm…..MC2806886/”

        Uh, you’re kidding, right?
        Or you’re really an AP.

      5. If your kind push too hard, my kind will rise up and slaughter your kind en masse until you can no longer inflict yourselves on us. That’s the end game.

        Think on that before you and yours think to manage the lives of your betters.

  14. “such laws actually work in combating obesity”

    This is classic. Only a prog would come up with this. Don’t expect him to provide a citation, The Late P Brooks.

    Laws do squat. Here in la belle province they believe the repressive and punitive language laws are protecting French. Yet the quality of French has never been worse.

    With obesity, I don’t even know if there’s an epidemic. Some scientists and doctors aren’t so sure.

  15. Baylen, I don’t give money to your organization even though I spend a good portion of my Saturdays at farmer’s markets. Why do you think an organic farmer should give money to your lobbyist group when it seems like the thrust of your activity is directed at protecting the interests of big agribusiness. You should be hitting up us sugar, PepsiCo, and Kraft for donations. I’m just trying to help a brother out, you know.

    Is your work an example of fighting the collusion between big business and big government? I’ve been assured that’s what libertarians really care about.

    1. Because, not having the government tell you what you can and cannot drink = supporting cronyism…

      You are most certainly stupid.

    2. The funny thing about freedom is that you’re not in charge of everything, and that really bothers you doesn’t it?

    3. “Is your work an example of fighting the collusion between big business and big government? I’ve been assured that’s what libertarians really care about.”

      Better than supporting an ideology that killed millions.

    4. “I’ve been assured that’s what libertarians really care about.”

      You shouldn’t listen to those voices in your head.

  16. “Do you think it’s worth pointing out in your screeds against the diabolical threat of a ban on soda tubs that such laws actually work in combating obesity?”

    Those sound awesome. Where can I get one?

  17. “[Its] authority to regulate the public health in the City is delegated by the New York State Legislature”
    ——————

    “This provision empowers municipal agencies to enact binding regulations that may be stricter than the laws and statutes of the …”

    Was she referring to something like that? No?

  18. Francisco d’Anconia|7.5.14 @ 11:41AM|#
    “Because, not having the government tell you what you can and cannot drink = supporting cronyism…
    You are most certainly stupid.”

    Frank, over on the “recent temps’ thread, commie kid made it known s/he was trained in math. In fact, s/he bragged on how skilled s/he was in manipulating numbers and values.
    Notanotherskippy landed on commie kid with what seems (beyond my math) pretty clear claims of “ooops”; commie kid disappeared.
    Pretty sure we have skilled tech/idjit.

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