NYC Soda Ban Leads to Court Fight Over the Role of Government

Months after proposing a maximum beverage size of 16 ounces for sweetened beverages — what infamy mangled the "NYC Soda Ban" — Mayor Bloomberg found approval in an 8-0 vote by the New York City Board of Health. One Board Member abstained, finding the measure “not comprehensive enough.” In the weeks following, a group composed of the National Restaurant Association (which some critics call “the other NRA”), American Beverage Association, National Association of Theatre Owners (called by no one “the other ABA” or “the other NATO”), and many others filed a petition against the Board.

Their argument alleges the NYC Board of Health acted ultra vires of the legislature in passing the rule. The City Council, goes the petition, is both elected and has the proper authority to legislate on this topic. The rule is knocked for its arbitrary enforcement against soft drinks sold in restaurants instead of soft drinks sold in retail, or alcohol, dairy and lower calorie beverages sold anywhere. Polls are cited to show that a majority of New Yorkers opposed the measure.

Next is the expected argument that the rule will hurt restaurants' bottom lines. Many of these threads converge with the petition's analogy to Boreali v. Axelrod (1987), which struck down an attempt by the New York State Public Health Council to exceed its legislative powers by instituting a tobacco policy, itself struck down by the state legislature. The idea is to make champions of the rule take a big gulp at their folly.

Fat chance. Supporters of the rule (which includes Larry Gostin, who literally wrote the book on public health law) then filed an amicus brief, rebutting each issue by way of writing what the rule is and what it isn't. This project begins with the rule origin story. Many citations ensue as the brief identifies obesity as a public health problem, the role of sweetened beverages as the “largest contributor of calories and added sugar to the American diet,” and the prevalence of food eaten outside the home rising in tandem with soda consumption. With a link made between obesity and soda, the brief moves onto (admittedly high-minded remarks on) the evolving domain of public health bodies beyond successes in mitigating mass illness as a function of poor sanitation and communicable disease. The biggest threat to health today is obesity. But this builds the case for the rule as a good and appropriate policy, not necessarily one that follows proper jurisdiction.

This is where we get to the rule itself. The NYC Soda Ban conjures images of bathtub Pepsi and Mountain Dew speakeasies. The rule in practice is considerably more restrained, seemingly written in anticipation of legal obstruction. First, only food service establishments — places that serve food, like restaurants, fast food joints, stadiums, and movie theaters — come under effect. Where the petition sees this scope as arbitrary, the Board of Health has the jurisdiction to extend its rule to only these outfits.

That food service establishments are regulated and the local 7-11 escapes change is not arbitrary so much as it is a precise reading of regulatory responsibilities. So within establishments, only certain types of beverages are impacted. These are beverages that exceed a threshold 25 calories per each eight ounces, are less than 50%, and are not alcohol. The latter two are exempted because neither has been linked to obesity and its associated chronic diseases in the same magnitude of sugary drinks. In the case of milk, foods high in protein have been shown to increase satiety, thereby decreasing your appetite to eat more. The opposite is true for soda.

While the rule is tremendously nuanced, the image of the NYC Soda Ban persists. That is especially important to remember when considering the public comment period for the proposed rule. Of the 55 people who attended the forum, 28 were in support of the rule. Of the 38,000 who wrote comments to the Mayor, more than 32,000 comments were in support of the measure.

Even those who are still opposed to the rule are not snubbed. The rule does not ban the freedom of buying soda — you can buy an infinite amount of 16 ounce cups — so much as it limits the maximum size of each cup. In this way, the rule is really a symbolic jab at the culture of excessive overindulgence.

Finally, Gostin's brief fights legal precedent with legal precedent as it both invokes like and recent cases where the authority of the Board was affirmed and demonstrates where th soda ban rule doesn't fit the specifics of Boreali. Similar challenges were unsuccessfully posed against the now established menu-labeling rule and the artificial trans fats rule, each applied to food service establishments in 2009. Where Boreali involved a regulatory body passing the same defeated measure through an overstepping of executive power, the NYC City Council has never raised, let alone rejected, a like proposal.

Given the limited powers of the rule and the aggressive challenge of special interests and the lengthy time and effort spent crafting, defending, and preparing the rule, you might wonder whether the energy is for naught. In the case of New York City, it's worth the struggle.

First, local policy anywhere is an experimental lab in service of good policy everywhere. Similar proposals for regulating sugary beverages were defeated in Richmond, CA and Los Angeles County, in part because they were ballot measures without any model of success. With the rule change moving forward in March, efforts will be taken by the city to survey and evaluate the effectiveness of the rule. Already, Cambridge, MA is interested in going down a similar road. Should the Board of Health see the fruits of the labor, we can hope for similar and better policies on a larger stage.

Second, the symbolic drive of the rule advances the conversation on obesity. It's precisely because the NYC Soda Ban does not, in fact, ban soda that we can have nuanced legal debates at work here rather than slippery slope criticisms heralding a socialization of soda or Dr. Pepper death squads. Moreover, the visceral framing of smaller beverages makes conscious the expectations we bring to restaurants. When a maximum drink size snaps us out of the illusion of demanding portions in excess of our appetites, we may glance askance at our plates.

Third, policies that gain controversy in their engagement with obesity are helpful for making a very public (yet uncomfortably avoided) issue further visible. It's hard to talk about obesity, private or public. Policies like the soda rule can be vehicles for those discussions to take place.

In the past couple of weeks, a number of discussions and controversies and opinions have emerged. Health advocates are calling on Beyonce to rescind her $50 million deal with Pepsi. Coke's new commercial addressing obesity was panned. Good riddance. This is one issue that ought not fizzle out.