Mayor Michael Bloomberg and his aides at the NYC Department of Health seem to have been caught unawares Monday when Judge Milton Tingling Jr. struck down their “Portion Cap” ban on large sizes of sweetened beverages. They probably realized the mayor’s signature nanny-state initiative was unpopular with ordinary New Yorkers; but lulled, perhaps, by favorable press, they hadn’t realized how vulnerable it was on legal grounds as well.
In the short term, Judge Tingling’s decision is a delicious win for consumer liberty against the Napoleonic New Bossiness streak in the city’s chief executive. As has been pointed out, however, the judge would not necessarily have struck the regulations down had they been adopted by the New York City Council rather than imposed by the mayor’s appointees through administrative fiat; he wasn’t recognizing any general right of individuals to decide for themselves what foods to consume. Moreover, the judge’s diagnosis of the rules as “arbitrary and capricious” because they were riddled by so many exceptions is at best double-edged from opponents’ standpoint; would we really prefer rules redrafted so as to allow fewer exceptions?
But yesterday’s decision should cheer us for other reasons. It holds the Gotham administration accountable for overstepping the separation of powers, an important principle in the safeguarding of liberty. (In a profile of Judge Tingling, the New York Times notes that he’s been skeptical of government claims to power in a number of other cases as well.)
On Monday afternoon, Mayor Michael Bloomberg called a press conference to discuss a judge’s decision to strike down his infamous soda ban. The mayor told reporters he was confident the ban would be upheld by higher courts, and explained why the soda ban has been such an integral part of his administration: “It would be irresponsible not to do everything we can to try and save lives.”
On that point, I agree with Mayor Bloomberg. His administration should be doing everything it can to save the lives of its citizens. Would a ban on soda (he calls it “portion control”) actually save lives? The research indicates that the soda industry is already suffering. Today the New Yorker quoted a soda industry statistic showing a 12-percent decrease in non-energy drink sales for the carbonated soft drink industry since 2005. Despite that decline, obesity rates have continued to climb. Attempts to institute taxes on soda have proven futile in fights against obesity and there has been little successful research conducted into if reduced soda intake would effectively reduce BMI (body mass index). Putting aside the egregious violations of individual liberty that this and many other Bloomberg pet projects commit, the soda ban would also likely achieve few, if any, of its aims.
If Bloomberg were so interested in saving lives, he should be focusing on how to do so within the bounds of his powers as mayor–powers that wouldn’t be challenged in court and fought over long after he leaves office. In 2004, shortly after becoming mayor, Bloomberg delivered a speech outlining his administration’s goals, including promising to lower the city’s shelter population as well as tackling other issues related to the homeless. The Atlantic Cities reports on how that turned out:
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.
Today New York City’s Board of Health approved a ban on the sale of large sodas and sugary drinks in many establishments. It is, as the New York Times pointed out, the first such law enacted in the country. The intent of this initiative pursued by Mayor Michael Bloomberg is to combat the epidemic of obesity in this country. But good intentions have always paved the road to hell or, more important, the path to tyranny. Bloomberg is right to say that New Yorkers ought to be watching their diets. He’s dead wrong in attempting to use the ubiquitous power of the state to impose his ideas about what they should be eating and drinking on them.
The mayor has said he doesn’t want to take away anyone’s right to drink as much soda as they want, but rather his goal is, as he said on the “Today” show, to “force you to understand” that what you are doing is wrong. But at the heart of the latest instance of the mayor’s attempt to become New York’s nanny-in-chief, is an idea put forward in the New York Times by one of his measure’s supporters. As filmmaker Casey Neistat wrote on Saturday, the issue is “that some people just aren’t responsible enough to feed themselves.” That is exactly the frame of reference of Bloomberg on this and all such measures where he and other do-gooders seek to govern the lives of fellow citizens. It is not that they oppose individual freedom per se but that they think the rest of us are too sick or too stupid to be allowed to exercise it freely.