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Topic: soda ban

The Soda Ban and Helicopter-Mayoring

Today the Michael Bloomberg era in New York City drew to a close. Not officially, of course; Bill de Blasio’s mayoralty was inaugurated at the beginning of January. But today it can begin in earnest, and in modest acclamation: the soda ban is dead. And with it exits a style of governing that will most indelibly be remembered for perhaps its greatest flaw: an obnoxious paternalism that told even the city’s starving homeless precisely what they can and cannot consume.

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Today the Michael Bloomberg era in New York City drew to a close. Not officially, of course; Bill de Blasio’s mayoralty was inaugurated at the beginning of January. But today it can begin in earnest, and in modest acclamation: the soda ban is dead. And with it exits a style of governing that will most indelibly be remembered for perhaps its greatest flaw: an obnoxious paternalism that told even the city’s starving homeless precisely what they can and cannot consume.

New York State’s highest court today rejected the final appeal to keep the ban on large sodas in place. The New York Times headline on the story is “City Loses Final Appeal on Limiting Sales of Large Sodas,” but I think we’re all winners here, the city included. Bloomberg is to be commended for some of his policies: the full-throated defense of public safety chief among them. But Bloomberg got caught up in paternalistic social engineering and the soda ban was one of the most invasive–and illegal–results. The Times reports:

In a 20-page opinion, Judge Eugene F. Pigott Jr. of the State Court of Appeals wrote that the city’s Board of Health “exceeded the scope of its regulatory authority” in enacting the proposal, which was championed by former Mayor Michael R. Bloomberg.

The decision likely will be seen as a significant defeat for health advocates who have urged state and local governments to actively discourage the consumption of high-calorie beverages, saying the drinks are prime drivers of a nationwide epidemic of obesity.

Two lower courts had already sided against the city, saying it overreached in attempting to prohibit the purchase of sugared drinks in containers larger than 16 ounces, about the size of a medium coffee cup. By a 4 to 2 vote, the justices upheld the earlier rulings.

In that article, however, you can see who Bloomberg’s real constituents were: first and foremost, the media. Proponents of intrusive statist powers are, according to the Times, “health advocates.” Simply because they say so. Even though some of the schemes the “health advocates” have pursued have been shown to produce exactly the opposite result–that is, the population’s choices become less healthy. But as with most liberal projects, the intentions are all that matter. Who wouldn’t want to ban large sodas? Think of the children.

The irony of the Bloomberg administration’s overreach on sugary drinks is that such helicopter-mayoring overshadowed other policies and came to identify him. He’s been replaced by a much more liberal politician, who may actually restore some of Bloomberg’s reputation. Say what you will about Bloomberg’s nanny statism, but he did not acquire his inspiration for public service by watching the Marxist Sandinistas.

Bloomberg’s record on public safety threatens to be undone by de Blasio, whose election ended the era of hugely popular and undeniably successful police commissioner Ray Kelly, after which the police were instructed to stop gun violence by smiling at passersby. It’s too early to say if the resulting recent spike in violent crime is here to stay, but all indications are that de Blasio’s terrible ideas about public safety are just as irresponsible and unserious as they seemed when they began emanating from Planet Brooklyn during the campaign.

The biggest initial threat to de Blasio’s public approval was his staunch opposition to charter schools. De Blasio prefers to delegate his education policy to the unions, with the result that minority students have even fewer opportunities. De Blasio soon realized that trashing proven educational opportunities perhaps struck the wrong “tone.” (We can cut de Blasio some slack here though: it’s doubtful the Sandinistas had anything to say about charter schools, so the mayor was learning on the job.)

De Blasio represents a different kind of progressivism than Bloomberg’s version of city governance. For Bloomberg, that has advantages. Had he been followed by a more conservative mayor, his successor would have simply built on the better policies Bloomberg instituted while quietly scrapping the restrictions on fizzy bubblech. Instead, he’s being followed by an ideologue testing the limits the people will place on his airy radicalism, using New Yorkers as crash-test dummies.

That may leave New Yorkers pining for Bloomberg, but there’s a caveat: de Blasio has so far shown himself responsive to public opinion. If that ends up curtailing his leftist impulses, such populism will distinguish itself from the pompous elitism with which New Yorkers had in recent years been treated.

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Bloomberg’s Soda Grab and the Administrative State

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.)

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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.)

Under separation of powers as generally understood at the time of the Framers, an executive agency cannot enact new legislation on its own, that being a role constitutionally reserved for the legislature. Especially during the Progressive Era and New Deal, these barriers were eroded as administrative agencies claimed a power to issue regulations that looked more and more like traditional legislation, under powers deemed to have been delegated by the legislature. Still, there are some limits, both under the U.S. Constitution and in New York (which under a 1987 case called Boreali v. Axelrod applies its own, quirky standard in evaluating whether a regulation oversteps the separation of powers.) And those limits to delegation were at the heart of the soda case.

The New York City Health Department was asserting a breathtakingly broad definition of its powers, on the grounds that successive city charters give it sweeping authority to address all matters relating to health. Under the interpretation advanced by Bloomberg’s lawyers, this vague charter language would empower the department to issue pretty much whatever diktats it pleases for New Yorkers to obey on any topic somehow related to advancing health. (They did concede that the department could not take actions that were otherwise unconstitutional–say, suspending freedom of the press or quartering troops in civilian homes during peacetime.)

Against this, Judge Tingling reasoned (as have judges in other cases) that the charter language could not have been meant to grant the department an absolute and monarch-like authority over a subject populace; natural and reasonable limits must be read into it. What are the natural and reasonable limits to the authority of a public health agency? Looking at cases where the agency’s authority to act had been upheld, the judge noted instances of emergencies, particularly those relating to epidemics of contagious or communicable diseases. Those are indeed the traditional functions at the core of a public health agency; saving us from voluntarily assumed dietary choices that may very gradually undermine our health is not among them. So if the agency wishes to assert powers in these new areas, it must ask the legislature for new authority.

In that legal finding is the germ of a much-needed rebuke to some actors in the public-health movement, who have taken the centuries of moral and practical authority originally built up by their colleagues from the fight against epidemic infectious disease and dubiously sought to apply it to a dozen other health-related questions of life and lifestyle, including not only doughnuts, soft drinks and salty snacks but also such supposed “disease vectors” as gun ownership and overreliance on cars for commuting.

It’s about time someone told them no. Let’s thank Judge Tingling for doing that.

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Bloomberg Spends His Time on Soda, Not Record Homelessness

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:

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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 January 2013, for the first time in recorded history, the New York homeless shelter system housed an average nightly population of more than 50,000 people. That number is up 19 percent in the past year alone, up 61 percent since Bloomberg took office, and it does not include victims of Hurricane Sandy, who are housed separately.

The Bloomberg administration has blamed the economic crisis for the record numbers of homeless citizens in city shelters, but City Limits took Bloomberg and his administration for task on their wavering commitment to solving the problem, which has now turned into a crisis:

In the final chapter of his tenure, Bloomberg and the Department of Homeless Services appear worn out on the issue, maybe downhearted by the size of the problem. A sense of helplessness has grown where there was once a hint of notable successes. For all the brash ambition in the mayor’s final state of the city speech in February, homelessness didn’t merit a mention.

The Mayor’s staff and press office have spent a considerable amount of time and energy promoting a soda ban that the research suggests will be ineffective. Instead of spending the city’s limited resources in this manner, Bloomberg would have better served the city of New York by upholding his promise to homeless New Yorkers to get them off the street and into homes. The next mayoral election is in November. If Bloomberg decides to punt the issue to his successor, New York City’s homeless will spend at least one more winter in the cold.

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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.

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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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Bloomberg’s War on Individual Freedom

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.

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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.

The justification presented for this unprecedented government interference in both commerce and individual behavior is that the public and the government bear much of the cost of the illnesses that derive from obesity. But the logic of this argument breaks down when you realize that such reasoning would allow government to interfere in just about any sphere of private behavior including procreation. That is exactly the point that the Communist regime in Beijing has given in defense of its tyrannical one-child policy and the forced abortions that are performed in order to enforce it.

One needn’t paint the billionaire mayor as a would-be totalitarian to understand that a government that can tell you how much soda to drink or fat to eat because the sugar in your super-sized cup will eventually cost it something is one that can, in theory, tell you to do or not do just anything else you can think of.

America’s grand experiment with do-gooder government early in the 20th century was no less well intentioned than that undertaken by Bloomberg and his food and drink police. Indeed, the prohibition of the sale of alcohol addressed a far more urgent health problem facing the nation then (and now) as well as one that cost it, even in that era of small government, a lot of money. But Americans soon learned that legislating personal choices in such a manner is always a colossal mistake that tells us more about our faults than our virtues.

Personal choices, such as the consumption of sugar, do not fall under any reasonable definition of government responsibility. However serious our obesity problem may be, it cannot be solved by government fiat. Indeed, it isn’t likely that there will be a single less fat person in New York because of Bloomberg’s power play. But there will be a little less individual freedom in the city and elsewhere if his noxious idea spreads. The issue here is freedom, not sugar or obesity. The damage from this infringement on the fundamental values that are the foundation of democracy will hurt us far more than the extra few ounces of soda that the mayor begrudges New York’s citizens.

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