New York City's Soda Ban Is Dead

Bloomberg has vowed to appeal, but the ban appears to be finished.

Earlier this week a New York state judge put a lid on New York City Mayor Michael Bloomberg's looming ban of certain subjectively large sizes of sweetened drinks like soda. Judge Milton Tingling's welcome decision, which came just hours before the ban was to take effect, means the city will move forward without any such restrictions.

The ban was problematic and wrong from the start.

As I argued in remarks I delivered on behalf of Keep Food Legal and its members and supporters before New York City's health department over the summer—and in columns here and here—the ban lacked any legitimate scientific justification; would have negative intended consequences (it would have served as a sales tax increase) and negative unintended consequences (it would have generated additional waste, which seems anathema to a mayor who claims to be fighting such waste); was widely and wildly unpopular—everyone from Matt Lauer and Jon Stewart to The New York Times and The Nation opined against the ban; and would have restricted food freedom of choice.

Judge Tingling deserves credit for rightly acknowledging the ban was a wrongheaded, arbitrary, and capricious prohibition passed by an unelected health board whose members were each appointed personally by New York City Mayor Michael Bloomberg.

The judge's decision is a great victory for consumers and consumer rights and for small and large businesses alike.

"The key thing is that this was an arbitrary and capricious action by the health department, and the court recognized that," I told National Review's The Corner earlier this week. "It's a victory. In general, I'd like to see the court being more vocal in defending people's rights to make their own choices, but this is definitely a good first step."

Judge Tingling's decision is also a stinging loss for a segment of the well-funded, powerful public-health apparatus in this country that seeks to limit food freedom. But then I'd also argue the ban itself would have been a loss for that same community. 

"Rather than advancing public health policies, this [soda ban] is making people skeptical of public health policies," I told Law360, a popular legal news service.

All wasn't so serious. The aborted ban did inspire some righteous humor.

National Review editor Rich Lowry, writing in Politico, envisioned a School House Rock reboot that "illustrate[s] the process whereby New York City almost got its soda ban…. Mayor Bloomberg tells the New York City Department of Health and Mental Hygiene what to do, and it does it."

And The Onion lamented that "mounting opposition to New York City Mayor Michael Bloomberg's proposal to prohibit the sale of large-size soft drinks served as sad and sobering proof that Americans are still willing to fight for the causes they believe in."

Still, even though the ban failed before it ever took effect, it was no joking matter for those who had to spend money preparing for it to impact their businesses.

Soda makers estimated it would cost more than $600,000 to comply. One New York City deli owner reported he'd already thrown out more than $1,000 in cups preparing for the ban.

There has to be a better way. And, sure enough, none other than Mayor Bloomberg knows this.

"I think that it is incumbent on government to tell people what they're doing to themselves and let people make their own decisions," said Mayor Bloomberg on the Late Show with David Letterman the evening the ban was overturned. "So our job is to educate people[.]"

I agree. Full stop.

Though Mayor Bloomberg has already indicated the city plans to appeal the judge's ruling, I'm cautiously optimistic the appeals court will uphold Judge Tingling's ruling.

Either way, the lame-duck mayor only has another eight months left in office. His likely successor, councilwoman Christine Quinn, opposes the ban.

One way or another, this ban appears rightly to be dead.