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.

NYC Department of Health Approves Super-Sized Soda Ban

In what should be a surprise to absolutely no one, the New York City Department of Health rubber stamped Mayor Mike Bloomberg's proposal to ban sugared beverages that exceed 16 ounces. The vote was 8-0 with one absention.

The regulation passed Thursday puts a 16-ounce size limit on cups and bottles of non-diet soda, sweetened teas and other calorie-packed beverages.

The ban will apply in fast-food joints, movie houses and Broadway theaters, workplace cafeterias and most other places selling prepared food.

It doesn't cover supermarkets or most convenience stores.

City health officials say the ban is necessary to combat a deadly obesity epidemic.

The ban would take effect in March 2013. Health experts claim that the limit would help fight the obesity epidemic, and that soda is nothing but empty calories.

Never mind that this becomes an indirect tax on those who purchase the oversized beverages rather than a multitude of smaller beverages (sharing among multiple cheaper because it's cheaper per ounce to do so).

Setting aside the nanny-state aspects of the ban, which are numerous, there are practical problems with the ban.


The ban ignores that there are other more dangerous food products that are just as likely, if not more so, to cause adverse health effects.

No one is calling for bans on sales of steaks larger than 8 ounces, even though beef products can contain more fat and calories that can pack on the pounds and lead to obesity.

Here, the focus appears to be on the "empty" calories, and nothing more.

There are carve-out exemptions for milk-based beverages, such as iced coffees, and juices, and that too ignores that those beverages contain far more calories than the now-banned products.

The restrictions would not affect fruit juices, dairy-based drinks like milkshakes, or alcoholic beverages; no-calorie diet sodas would not be affected, but establishments with self-service drink fountains, like many fast-food restaurants, would not be allowed to stock cups larger than 16 ounces.

Only establishments that receive inspection grades from the health department would have to obey the rules, a group that includes movie theaters and stadium concession stands. Convenience stores, including 7-Eleven and its king-size “Big Gulp” drinks, would be exempt, along with vending machines and some newsstands.

Mayor Michael R. Bloomberg has said the plan does not limit consumers’ choices, since customers can still purchase as many 16-ounce drinks as they would like. The soft-drink industry, which has spent more $1 million on a public-relations campaign opposing the plan, argues that the policy restricts consumers’ freedom to buy beverages as they see fit.

Six in 10 residents said they thought the plan was a bad idea in a recent poll by The New York Times. But the measure easily earned the approval of the health board, whose members were appointed by the mayor. The board voted eight to zero, with one abstention, to approve the measure just after 11 a.m. Thursday.

Mr. Bloomberg has made curbing obesity a top goal for his administration, citing higher rates of diabetes and fatalities among the city’s more overweight neighborhoods. More than half of adult New Yorkers are obese or overweight, according to the city’s health department.

Bloomberg seems to have targeted those products that he thought he could ban without a stiffer fight - rather than following the science.

This wouldn't appear to ban refills, which is yet another way to circumvent the ban on portion size.

And, as I've noted before, the soda makers could rebut the empty calories claims by adding vitamins and minerals to the soda products. 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.

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.

If the New York City ban takes effect as scheduled, expect other cities to follow suit.

Soda Ban Proposal Gets Health Department Public Hearing Today

The New York City Department of Health will be holding a hearing today to allow comment on a proposal to ban certain kinds of sales of sugar-containing beverages.

A just released study by New York University found that the ban as proposed would cut caloric intake by 63 calories, but the results may be negligible as customers simply buy more of the beverages:

Mayor Bloomberg's proposed ban caps a maximum size of 16 ounces for sugary drinks - sold in cups or bottles - at food establishments under the New York City Department of Health and Mental Hygiene's jurisdiction. That includes restaurants, fast food chains, delis, street carts and movie theaters. Drinks sold at grocery and convenience stores - including two-liter bottles and 7-11's "Big Gulp" fountain drinks - would be exempt from the ban.

New research led by Dr. Brian Elbel, an assistant professor of population health and health policy at NYU Langone School of Medicine in New York City, analyzed what impact Mayor Bloomberg's proposal would have on a typical consumer's calorie intake.

Elbel and fellow NYU researchers pooled data from two studies that included 1,624 sales receipts listing a non-milkshake beverage (dairy products are excluded from the proposed ban), which were collected from diners at three different fast-food restaurants in New York City, Newark, N.J., Philadelphia and Baltimore from 2008 to 2010. Their research is published in a correspondence to the editor in the July 23 online issue of the New England Journal of Medicine.

Based on the receipts and corresponding survey information collected from the studies, the researchers determined that 62 percent of beverages bought at these restaurants would be over 16 ounces and subject to the mayor's new proposal. Elbel explained to HealthPop in an interview that if 100 percent of fast food consumers switched to a 16-ounce drink from their previous order, the average consumer would take in 63 fewer calories per trip to a fast-food restaurant.

However that's assuming nobody opts to purchase an additional 16-ounce beverage - people can buy as many as they like at these establishments under Bloomberg's proposal - which Elbel conceded may not be likely. His research found that if only 30 percent of consumers reduced their intake to a 16-ounce beverage, the decrease in calories would be negligible.

I've repeatedly stated my opposition to this ban on several grounds, including that it arbitrarily creates a class of banned beverages, even though there are other beverages that contain far more calories per ounce and that other lifestyle choices can have a far greater impact on public health (many a Starbucks beverage will often have more calories than a soda as would many of the iced beverages sold at McDonalds and other chains).

In other words, the class of beverages affected is arbitrary and will not have any appreciable effect on obesity, but it would pave the way for far more intrusive changes imposed by health departments around the country.

Sedentary lifestyles play a significant role in obesity and getting more exercise needs to be considered. Cutting soda portion size isn't a panacea, particularly when soda consumption has been down even as the number of obese people has increased. Something else is at play when soda consumption is down even as the percentage of obese people has increased. That something happens to include a sedentary lifestyle and oversized food portions.

Mayor Bloomberg's proposals are about what he thinks the Department of Health can get away with as far as limiting portion sizes, not based on actual science or greatest impact on public health.

It still comes down to personal choice, and a person will take in far more calories than they need, which is why so many people try and fail on diets to eat sensibly and within their caloric needs as determined by nutritionists or diet experts. The failure to exercise makes things all the worse.

After all, someone who eats a 16 ounce porterhouse or other similar steak will take in far more calories than someone drinking a 16 ounce soda, but there's no limiting the restaurant from serving even bigger portions of steak, even though a serving size is a fraction of that amount.

This is just a misguided effort by a nanny stater to impose a ban that will have a negligible effect on public health.

The Big Hole In Bloomberg's Health Kick

Just days after calling for an outright ban on super-sized soda portions in most New York City establishments, Mayor Mike Bloomberg saw fit to issue a proclamation honoring National Donut Day.

I'd say that's a huge hole in Bloomberg's health policy.

As it is, I doubt that Mayor Bloomberg would be willing to ban any serving of Waygu beef larger than 4 ounces (or any steak for that matter), considering that most 4oz portions of beef have as much calories as the size soda he's looking to ban (and beef has more fat, but more other nutrients as well).

If the issue is calories, why not ban super sized juices or milk shakes (those are exempt under the proposed rule). And if you're a soda maker, why not add other nutrients to show that the sodas aren't merely empty calories - one of the justifications for the ban/taxing of soda proposals.

Fact is that obesity is a problem but it's not only due to nutrition (or bad nutrition). The fact that so many people sit on their asses all day and don't get exercise is a major contributing factor. We simply eat far more than we burn off - and that packs on the pounds.

Portion control would go a long way, but that's personal choice too. And nothing is being done - either by individuals or the companies selling them - to deal with the super-sized portions at restaurants of all stripes. People keep consuming stuff without regard to the consequences. The calorie counts may help with that, but ultimately it comes down to the individual to decide what, and how much, to eat or drink.

Nothing is going to stop a person from buying multiple beverages other than the costs (which is an indirect tax on those who want to get those beverages).

However, if you're interested - both Dunkin' Donuts and Krispy Kreme are giving away free donuts (though I think you need to buy a beverage at DnD to get the freebie).

UPDATE:
Bloomberg is busy rationalizing the discrepancy between calling for a super-sized soda ban and honoring donuts. One donut may be as bad or worse than one of those super-sized sodas, depending on what that donut is.

The reason he thinks he can get away with a soda ban is that soda will continue to be sold in other sizes, but he can't ban donuts (or other regularly sold food products) because of the uproar had he even thought about it.

If He Can't Tax It, Bloomberg Hopes To Ban Big Gulp-Sized Soda Sales

Mayor Mike Bloomberg continues his nanny-state ways. His latest proposal is to ban sales of super-sized sugary beverages:

The man behind calorie counts is set to announce a new public health initiative to battle obesity, taking aim at super-sized sugary drinks.

In other words, it may soon be time to say goodbye to those Big Gulps, those Slurpees or even Venti at Starbucks, CBS 2’s Derricke Dennis reported.

“That’s okay,” one person said.

No it’s not, according to Mayor Bloomberg, who is set to propose a ban on sugary drinks over 16 ounces everywhere, all across the city.

“I disagree with it, because it’s the right to choose. If you want to drink a Slurpee, you should be allowed to drink a Slurpee,” said Jamie Sawyer, a tourist from Oklahoma.

It's one thing to require calorie counts so that people can have the knowledge to choose products that may be healthier and lower in calories.

It's quite another to ban an entire size category - anything larger than 16 ounces. Nothing stops those who are already buying those products from simply buying two of the smaller size - and increasing the costs to the purchaser (which might be part of Bloomberg's strategy).

However, soda and sugary beverages aren't the sole culprit, or even the main culprit in an obesity epidemic. Consider that most folks aren't getting enough exercise. A sedentary lifestyle plays a far greater role than soda.

Then, there's the caloric intake due to super sized meal portions or even portions at high end restaurants that blow the scales on calories. Consider that a famed restaurant like Junior's in Brooklyn is notable for their desserts, including cheesecake. Those portions aren't small. In fact, a single serving could feed two or more people in many cases. We're not talking an insubstantial calorie count either.

How about the steakhouses around the city (either sole locations or chains). They offer up huge steak portions - thousands of calories, tons of fat, protein, and other nutrients. Those aren't even being considered.

So, does this in fact turn out to be a "tax" on those who are least able to afford food cost increases? Since many vendors charge far less for the largest sizes of beverages per ounce than those with the smaller sizes, sharing among family members or friends would be out of the question with Bloomberg's ban, and it would mean that customers would incur higher charges to get the same amount of product.

Moreover, there's no reason to single out sodas and sugary beverages from other products - like juices or milk-based products (like milk shakes) if we're talking strictly calorie counts - the basis of Bloomberg's premise behind the proposed ban.

It appears that the only reason that juice and milk-based products aren't included in the ban is because they have other nutrients. Yet, juice and milk shakes can contain as much or more calories per ounce than soda - and the fact that soda doesn't have any other nutrients could be altered if the soda manufacturers add other nutrients to them - to get around a proposed ban.

If Bloomberg goes ahead with this ban, watch soda manufacturers consider lawsuits seeking to overturn the ban, as well as consider adding vitamins or minerals to show that these aren't merely empty calories (and undermining Bloomberg's premise). UPDATE: To give you an idea of how asinine Bloomberg's proposal is, consider that a T-bone steak - 8 oz worth is 448 calories. That compares to 8 ounces of Coca Cola that runs 98 calories. It would take 32 ounces of soda to equal the steak, and the steak has other issues (namely fats that contribute to obesity, although there is protein and other nutritional value to steak in moderation.