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Soda Ban and the Government Leviathan

In recent decades, the judiciary has been at the forefront of efforts to expand the power of government and to restrict the rights of the individual citizen. But today at least one judge has struck a blow against the nanny state and its billionaire advocate. Justice Milton A. Tingling of the New York State Supreme Court handed down a ruling today that prevents the city of New York from putting into effect Mayor Michael Bloomberg’s law banning the sale of certain sizes of sugared drinks. While Bloomberg’s administration plans to appeal the decision, for now the effort to prevent New Yorkers from making a choice about what kind and what amounts of drinks to consume has been shelved.

Tingling rightly blasted the law as “arbitrary and capricious” since the text of the law was a confused mess. Only some types of sugared drinks were targeted for the new rules and the sales would only be restricted in some types of establishments. The legislation seemed designed to mandate “uneven enforcement even within a particular city block, much less the city as a whole.” Moreover, the loopholes within the rule effectively defeated the purpose of the entire endeavor.

But Tingling’s critique was not merely about the poor drafting of the law. Far more important was the city’s decision to give itself far-ranging power to act in the name of public health. By saying it had the right to tell people how much soda they could drink in this manner it was establishing a government monster “that would leave its authority to define, create, mandate and enforce limited only by its own imagination.” The result would be to “create an administrative Leviathan.” In doing so, the judge highlighted the fact that this controversy isn’t about whether sugared drinks are healthy but whether the impulse to do good gives Bloomberg, New York or any legislature or government bureaucrat unlimited power to restrict individual rights.

Let’s specify that drinking large amounts of sugared drinks is unhealthy and that obesity has become a serious health problem in the United States. The government’s duty to protect public health does give it the right to ban certain types of dangerous substances. But even if the consumption of large amounts of sugar is bad for us, that doesn’t mean New York City, or any municipality that wants to turn itself into a nanny state, should have the ability to tell citizens how much of a legal substance they can or cannot eat or drink so long as doing so does not create an imminent danger to public safety–as with alcohol.

The soda ban was poorly drafted and created an inconsistent and hypocritical set of rules that wouldn’t have done much, if anything, to make anyone healthier. But the issue here is whether the desire to improve our health is sufficient to justify the abrogation of individual rights. The point is not so much the right to imbibe 32-ounce drinks at the movies as it is whether there is anything the government may not regulate in its zeal to become the food police.

The context for this battle is the shift in opinion in which health has replaced, or rather now serves as a substitute for, virtue in our public square. Smoking is a vile, anti-social habit that poisons the air we breath as well as the lungs of nicotine addicts. But it has now assumed an evil status that was once reserved for ethical or moral transgressions about which a culture of moral relativism now informs us we must be nonjudgmental. But anything that can be branded as unhealthy bears with it the mark of Cain today.

If we are now a nation that treats the fad of organic food as a religious obligation and worships health the way we once celebrated moral behavior or piety, so be it. But if we are to translate these beliefs into law then the same danger applies to other attempts to legislate certain types of morality.

A government that can tell citizens what to eat or drink or how much can be legally consumed is one in which individual liberty is now considered a less important value than the dictates of dieticians. Neither the obesity epidemic nor any other health issue based in individual choice can give New York City, or any other government, such power. We can only hope that Judge Tingling’s ruling stands and prevents further attacks on liberty in New York and any other place where politicians seek to use public health as a lever to abrogate individual rights.


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