New York's Court of Appeals Kills Bloomberg's Soda Ban Legislation

The top court in New York, the Court of Appeals, ruled against the Bloomberg era soda law that limited certain carbonated beverage sizes. The law was convoluted, hard to administer, and ignored that there were entire classes of beverages that delivered the same or greater amounts of sugar but were exempt from the size restriction.

http://www.scribd.com/doc/231420602/134opn14-Decision

The court properly ruled against the soda size ban both substantively and procedurally. Mayor Bloomberg seems to have targeted those products that he thought he could ban without a stiffer fight - rather than following the science.

“By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York,” Judge Eugene F. Pigott wrote for the majority in 4-2 decision.

The ruling likely strikes the final legal blow to the controversial policy enacted by Mayor Bloomberg’s administration to ban large sugary beverages over 16 ounces.

Administration officials had argued the policy was necessary to combat the growing problem of obesity.

In arguments before the court earlier this month, city attorney Richard Dearing argued the 2012 regulation was a reasonable and science-based effort to combat obesity.

The ultimate goal was a worthy one, but that doesn't trump fact that the law was poorly written, it didn't follow the science, and infringed on personal rights and choices.

The law was so poorly thought out that it would have added costs to restaurants and businesses selling drinks by the cup, but it wouldn't appear to ban refills, which is yet another way to circumvent the ban on portion size. It ignored those beverages that are sold at places like 7-11 like the Big Gulp, as well as 2-liter beverages sold in grocery stores, but targeted only those beverages sold by the cup in restaurants. That was a restriction unfairly targeting those businesses and put them at a disadvantage. A restaurant couldn't sell a 32 ounce soda beverage, but the 7-11 next door could.

The law also ignored just how many calories were present in fruit juices, coffee products, and other products that are non-carbonated. That meant that sweetened ice tea wasn't restricted, but a soda beverage with the same calorie count per ounce would be restricted. It made no sense until you realize how the law was shaped by the need to get something passed and this was the path of least resistance; it had nothing to do with science.


And, as I've noted before, the soda makers could rebut the empty calories claims by adding vitamins and minerals to the soda products (and we're already starting to see some of that). It also ignores that obesity isn't the product of drinking more soda - if anything consumption of soda has declined, but obesity rates have continued to increase. Even the shift to more sugar-free sodas hasn't reduced the obesity epidemic. It's because people substitute even more calories from other sources when they think that they're not getting calories from soda. They pile on to their plates when they think they're getting a calorie free soda.

Obesity is a product of a sedentary lifestyle and consumption choices. Bloomberg seems to think that hiking the price of soda (which is what the ban on super-sized beverages would have) will result in reduced consumption and lower obesity levels. I expect that people will simply choose other alternatives and continue consumption of all calories at existing levels. Substitution will occur - not reduction.

The problem is that obesity isn't something as simple as cutting out soda. It means reducing overall calories, changing lifestyles, and making better and healthier diet choices.

The soda ban doesn't accomplish any of that. And the Court properly struck it down.

Christie Administration Now Probed on Port Authority Funding of Pulaski Skyway Rehab

Media outlets continue reporting that Gov. Chris Christie and his administration is being investigated for how the Port Authority funded the Pulaski Skyway rehabilitation project.

New Jersey got the Port Authority to shift funds originally meant for the ARC tunnel to go to rebuild the Pulaski Skyway. That happened when Gov. Christie cancelled the ARC project in 2010, and it's a decision I agreed with because NJ Transit could never keep to a capital budget and New York was not contributing to a project that would benefit immensely from the added tunnels, as well as the fact that the project design was flawed with no through-running trains to Sunnyside Yards for maximizing train access into Manhattan during the morning rush hour and additional trains for the PM rush back to New Jersey.

The Pulaski Skyway was one of the first superhighways designed and opened in 1932. It connected Newark to Jersey City across the Hackensack River and Meadowlands, along with providing direct access to the Holland Tunnel. The bridge was determined to need massive rehabilitation, particularly after the collapse of the bridge in Minnesota a few years back.

The rehabilitation project is indeed a worthy and needed project, but New Jersey didn’t want to raise its own taxes or fees to cover it. That would have put Gov. Christie in a tough position had he wanted to run for President. So, it appears that Gov. Christie and his appointees at the Port Authority got the Port Authority to issue a ruling that the Skyway was an access road to the Lincoln Tunnel, which would be a valid use of Port Authority funds. But the reality is that it’s a stretch to call it a Lincoln Tunnel access road since it directly leads to the Holland.

This has consequences for the bond offerings by the Port Authority since it would be a material misrepresentation of what the bond offerings were for.

Now, a complicating factor is that the Port Authority doesn’t answer to Christie alone. It’s a bistate agency and New York Governor Andrew Cuomo would ordinarily need to sign off on the deal through his representatives on the Board.

Bridgegate showed how the system inside the Port Authority has completely broken down and how New York's appointees on the authority were outside the loop for the GWB lane closures. Is it possible they’re outside the loop on the Skyway funding deal?

I consider that possible but highly implausible because all the major news outlets reported on how Port Authority funds were going to be reallocated to do the Pulaski project. That would seemingly implicate Cuomo as well. These issues should have been raised back then and there were questions about how the money was reallocated, though no one appeared to have raised the question about whether the reallocation was legal from a securities offering perspective.

How wouldn’t it implicate Cuomo? If the New Jersey cronies were the ones who ginned up the legal authority to shift the funds, ignoring other counsel, then the prosecutors might be able to isolate the culpability for the deal to Christie and his allies inside the Port Authority.

Frankly, the way Gov. Cuomo has screwed with regional transit and played games with MTA funding, I wouldn't be shocked if both were involved in these actions and that there was a quid pro quo for the Port Authority to spend a similar amount of funds on New York based projects.