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Main | Part I: A Breakdown of the Food and Farm Bill »
Thursday
Sep132012

Beverage & Restaurant Associations Won't Go Down Without A Fight in NYC Sugary Drink Saga

In a much anticipated vote, the New York City Board of Health approved a ban on supersized sugary drinks, specifically sodas. The ban is set to take effect in March 2013, 6 months after first being passed.

Specifically, the law will ban the sale of sodas and other sweetened drinks larger than 16 ounces by restaurants, movie theaters, street vendors and stadium concession stands. The law is not as all encompassing as it may sound. Stores categorized as "grocery" stores are left out. This means that 32-ounce Big Gulp from 7-Eleven will still be sold, because for purposes of this law, 7-Eleven is regulated as a grocery store. In addition, the ban does not apply to water, diet sodas, coffee drinks, milk or milkshakes, fruit and vegetable juices or alcoholic beverages.

Health Commissioner Thomas Farley said of the benefits of the law, "[if the law] results in shrinking only one sugary drink per person every two weeks from 20 ounces to 16 ounces, New Yorkers could collectively prevent 2.3 million pounds gained per year. This would slow the obesity epidemic and prevent much needless illness."

According to the Board of Public Health, of the 39,000 comments received on the law, approximately 32,000 favored the restriction. However, a poll in the New York Times last month found that 6 in 10 city residents said the ban was a bad idea.

The beverage industry is not going down without a fight. They argue that the ban takes freedom and personal choice away from New York City shoppers and will hurt businesses. According to Eliot Hoff, a spokesperson for grassroots organization New Yorkers for Beverage Choices, "This is not the end, we are exploring legal options, and all other avenues available to us. We will continue to voice our opposition to this ban and fight for the right of New Yorkers to make their own choices."

While groups, including the National Restaurant Assocation and American Beverage Association, will undoubtedly work towards filing lawsuits, their odds of succeeding are slim (though their ability to stall the March 2013 enactment are great). For these groups, the most likely legal argument is one in which groups claim a violation of the Constitution. The argument, under a rational basis test, would go something like this:

-The plaintiff (i.e. the beverage industry, businesses, etc.) must show that the legislation is not "rationally related to a legitimate government interest."

-The city would argue they have an interest in protecting the public health of their residents. NYC would need to present evidence that the ban does in fact protect public health - that it lowers consumption of sugary drinks thereby reducing obesity among residents, resulting in improved public health.

Harvard University professor of law and public health Michelle Mello told Reuters, "There are so many examples where states impose standards on consumer products sold within their borders. It seems hard to believe that this would be singled out as unreasonable by a court."

Alternatively, groups opposing the ban could go after the ban as a violation of the Commerce Clause. However, this argument is much weaker, given the power the Constitution grants states to regulate public health and safety.

And for my two cents on the ban itself:

Telling people they can't have something only spurs a greater desire to have it. Additionally, the law doesn't target all those businesses (i.e. grocery stores) and drinks that are necessary. Take the 32oz big gulp for example - people can still go and buy that or a venti frap (because it is made up of more than half milk). Refills aren't banned so you can still go and purchase a 12oz beverage from McDonalds and refill it 2-3 times. Those things are high in calories and sugar and are not being included in the ban. It begs the question - is a law that only bans a selection of high-calorie/high-sugar beverages a beneficial thing? Will it actually reduce obesity? Maybe to some extent but if the public want those things bad enough, they can get them.

On the other hand, 1/3 of Americans are obese. The obesity epidemic among our population is rapidly increasing and health care costs are skyrocketing as a result. We have to do something to reverse these trends. Will banning a select group of sugary drinks from certain locations reverse the trend alone? No, it most certainly wont. But is it a step in the right direction? Potentially. If you can get past the government telling you what you can and cannot consume (which they do in thousands of other ways, so why is this one being acknowledged as any different?), and instead focus on the fact that this ban is a public recognition of a problem that exists and we, as a society, need to take steps to correct and reverse this deadly and costly epidemic, then I think the ban is positive movement forward. If NYC and other governments wanted to get really serious about lowering obesity and concerning themselves with issues of public health, they would need to do much much more by way of banning many high calorie, high sugar items. Soda bans alone won't do the trick. 

For NYC and Mayor Bloomberg, the ban acknowledges a problem and takes baby steps towards improving it. Don't hold your breath for a March 2013 implementation date. This ban most certainly has not seen the end of the road.

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