Judge Strikes Down NYC Ban on Large Sodas

[General Mung Beans]

http://www.nytimes.com/2013/03/12/nyreg ... wanted=all

Judge Blocks New York City’s Limits on Big Sugary Drinks


By MICHAEL M. GRYNBAUM


A judge struck down New York’s limits on large sugary drinks on Monday, one day before they were to take effect, in a significant blow to one of the most ambitious and divisive initiatives of Mayor Michael R. Bloomberg’s tenure.

In an unusually critical opinion, Justice Milton A. Tingling Jr. of State Supreme Court in Manhattan called the limits “arbitrary and capricious,” echoing the complaints of city business owners and consumers who had deemed the rules unworkable and unenforceable, with confusing loopholes and voluminous exemptions.

The decision comes at a sensitive time for Mr. Bloomberg, who is determined to burnish his legacy as he enters the final months of his career in City Hall, and his administration seemed caught off guard by the decision. Before the judge ruled, the mayor had called for the soda limits to be adopted by cities around the globe; he now faces the possibility that one of his most cherished endeavors will not come to fruition before he leaves office, if ever.

The mayor’s plan, which he pitched as a novel effort to combat obesity, aroused worldwide curiosity and debate — and the ire of the American soft-drink industry, which undertook a multimillion-dollar campaign to block it, flying banners from airplanes over Coney Island, plastering subway stations with advertisements and filing the lawsuit that led to the ruling.

Mr. Bloomberg said he would immediately appeal, and at a quickly arranged news conference, he fiercely defended the rationale for the rules, which would have limited the size of sugary drinks to 16 ounces at restaurants, theaters and food carts.

“I’ve got to defend my children, and yours, and do what’s right to save lives,” the mayor said. “Obesity kills. There’s no question it kills.”

He added, “We believe that the judge’s decision was clearly in error, and we believe we will win on appeal.”

The plan, unveiled last May, was hailed by many public health officials as a breakthrough in the effort to combat the effects of high-calorie, sugary drinks on the public’s health. Similar proposals have been put forward in Los Angeles and Cambridge, Mass., even as the idea of a “war on soda” has become regular fare for late-night comedians.

Coffee shops and restaurants around the city had already begun editing menus, retraining employees and warning customers of the coming changes in the sorts of drinks they could and could not buy. Dunkin’ Donuts, for instance, told its employees they could no longer add sugar to large coffees.

The measure was already broadly unpopular: In a New York Times poll conducted last August, 60 percent of city residents said it was a bad idea for the Bloomberg administration to pass the limits, although Bronx and Queens residents were more likely than Manhattan residents to oppose it.

In his ruling, Justice Tingling concurred with much of the beverage industry’s legal arguments. He said the Board of Health, which is appointed by the mayor, had overreached in approving the plan, and wrote that the City Council was the only legislative body with the power to approve such a far-reaching initiative.

The administration, Justice Tingling wrote, had interpreted the board’s powers broadly enough to “create an administrative Leviathan,” capable of enacting any rules and “limited only by its own imagination.”

The judge also criticized the rules themselves, noting they would apply only to certain sugared drinks — dairy-based beverages like milkshakes, for instance, would be exempt — and be enforced only in certain establishments, like restaurants and delis, but not others, like convenience stores and bodegas. The rules, the judge wrote, would create “uneven enforcement, even within a particular city block, much less the city as a whole.”

Lawyers for the Bloomberg administration said on Monday that it remained confident the Board of Health — which has been the conduit through which the mayor has pushed through his boldest public health initiatives, including limits on trans fats in restaurants — had “the legal authority and responsibility” to address obesity in the city.

Mr. Bloomberg has some experience in prevailing over legal challenges to his public health initiatives, including his requirement that fast food menus include calorie counts.

But there was no immediate consensus on Monday on the likelihood of a reversal of Justice Tingling’s ruling.

Ross Sandler, a professor at New York Law School, said city laws deemed “arbitrary and capricious” had frequently been reinstated upon appeal. But Ronald John Warfield, a civil and criminal lawyer who sued the Bloomberg administration over its cigarette-taxing policy, said he expected the appeal to fail.

“Their intention may be good,” Mr. Warfield said of the city. “They went about this with an imperial hand.”

The soft drink industry had viewed the fate of the city’s rules as a global bellwether on government regulation of sugary drinks.

In court, the industry’s lawyers, from the high-powered corporate firm Latham & Watkins, presented their argument in high dudgeon, calling the rules “ludicrous” and dreamed up by “scientists in the room, working with the mayor, creating a regulation here that is going to cost people a ton of money.” The industry also suggested that small businesses would be unfairly hurt by the rules.

Lawyers for the administration offered a more subdued, highly technical rebuttal that only occasionally addressed the broader public health reasons for the plan. At one point, a city lawyer who had mumbled his words was asked by the court reporter to repeat his points, because she could not hear him.

On Monday, a spokesman for the American Beverage Association said that the court decision “provides a sigh of relief.”

“With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City,” the spokesman, Christopher Gindlesperger, said.

It is unclear if the appeal of the case will be resolved before Mr. Bloomberg leaves office at the end of this year. His would-be successors are mixed in their views of the measure and may not share his zeal on the issue.

The mayor appears increasingly preoccupied with his legacy, and recently hired two public relations advisers — a former Times editor, Arthur Pincus, and a former television reporter, Andrew Kirtzman — to shape the public perception of the Bloomberg era.

Asked on Monday if he was concerned that a drawn-out legal battle over the soda limits could spill into the administration of a successor who does not favor them, Mr. Bloomberg, sounding a bit irked, muttered, “All of our time is running out,” before saying, “I don’t know who is going to be my successor.”

The mayor added: “People are dying every day. This is not a joke. This is about real lives.”


Michael Barbaro, David W. Chen and Kate Taylor contributed reporting.

If the government does not belong in the bedroom, it does not belong in the kitchen either.

[Temjin]

If the government does not belong in the bedroom, it does not belong in the kitchen either.

While in this case this was a stupid law, this sentence isn't that much better. The government should damn well be in the kitchen, especially if, as in this case, it's a professional kitchen.

The law is stupid since it's seeking to force adults to limit their beverage choice while eating out to fight obesity. They have the right to choose for themselves, even if it's the wrong choice, if they should ingest sugary drinks or not.

But that doesn't mean the governement should have nothing to do with kitchens. It's the governemt that handles health inspections. It's the government that does it's best to make sure that the food that restaurants serve you won't give you the shits and make you have to clean vomit off your walls. It's the government that makes sure the ingredients used by restaurants (and store bought ingredients at home) are acually safe for human consumption. It's the government that makes sure that all employees in that kitchen follow proper food handling practices. And when a restaurant does manage to severely poison enough of it clientelle, it's the government that closes that restaurant down before it can harm anyone else.

[dragon]

He might have had better luck placing a city tax on regular soda to encourage people to switch to diet and earn revenue. When I switch from regular to diet I lost about 20lbs over the summer. Now I just gotta lose the other 80 I put on after I got out of the military.

[Mr Bean]

Read the brief and the story, the reversal of the ban has less to do with government over-reach than the numerous giant loopholes in the law. Read this part again

The judge also criticized the rules themselves, noting they would apply only to certain sugared drinks — dairy-based beverages like milkshakes, for instance, would be exempt — and be enforced only in certain establishments, like restaurants and delis, but not others, like convenience stores and bodegas. The rules, the judge wrote, would create “uneven enforcement, even within a particular city block, much less the city as a whole.”

So the way the law is written if Starbucks wanted to sell you a 32 ounce soda that's illegal and punishable by a fine, but 7/11 can still sell you the 72 ounce thirst destroyer legally.

[Vendetta]

Look buddy, writing a sensible law with well understood utility, consequence, and a plan for practical enforcement is just un-American.

You'll be talking about things like funding preventative healthcare measures to allow people to make sensible decisions about food choices next, and where will that end up?

[Dr. Trainwreck]

I know that people should be allowed to choose, but I don't really see something wrong with the idea of legislating to better the health of the many.

Vendetta: the only law required right now is one that will require of the rest to make sense.

[Losonti Tokash]

On the other hand, reducing serving sizes instead of throwing a sin tax on junk food tends to actually work, so this was a good concept ruined by idiots making exceptions for their buddies.

[aieeegrunt]

All sorts of restrictions and penalties are thrown on tobacco for the good of the public health, I see nothing wrong with doing the exact same thing to something which is far more harmful to the health of far more people than tobacco is.

[Flagg]

All sorts of restrictions and penalties are thrown on tobacco for the good of the public health, I see nothing wrong with doing the exact same thing to something which is far more harmful to the health of far more people than tobacco is.

Except the reasoning behind such restrictions (at least in the US) is mainly due to the dangers of second hand smoke. We don't restrict the number of cigarettes people can smoke per day. Plus, this is the dumbest law ever. "You can't get large tubs of soda anywhere except places that already serve large tubs of soda".

[Losonti Tokash]

This law also doesn't restrict how much soda you can have per day, it just changes the default serving size, which reduces consumption. I went and read the city's arguments and the reason for a lot of the exceptions is that the city doesn't have the ability to regulate certain businesses or products.

Soda absolutely should be regulated more strictly thanks to its addictive properties and massive negative impact on publichealth.

[Jaepheth]

It'd be a lot simpler (require fewer exemptions and allow for more consistency) to just limit the number of calories per beverage container.
Of course, that just shifts the complexity from the law books to the suppliers/vendors. I can imagine large cups that resemble paint mixing buckets with a plethora of fill lines for each beverage product the cup is meant for.

I think a better law would be to simply require the number of calories (upper limit) for a drink be printed clearly (48pt font) on the cup. That would both help inform people and possibly shame people into buying smaller servings.

[Flagg]

This law also doesn't restrict how much soda you can have per day, it just changes the default serving size, which reduces consumption. I went and read the city's arguments and the reason for a lot of the exceptions is that the city doesn't have the ability to regulate certain businesses or products.

Soda absolutely should be regulated more strictly thanks to its addictive properties and massive negative impact on publichealth.

Dude then so should coffee, tea, and frankly anything with caffiene and/or sugar. I mean I'd support limiting portion size but you have to do it for everything that's mostly or purely empty calories. And you don't get to make exceptions for fucking milkshakes.

[Losonti Tokash]

Pretending those have anywhere the same impact on public health, particularly when it comes to minors, is pretty silly. We're talking about something that is constantly aggressively marketed to kids to the point where it's literally advertised and sold in schools. As a bonus, thanks to corn subsidies, soda is literally cheaper than milk or juice.

Those aren't things the city can change, but they can alter the default serving size, which has been shown to reduce soda consumption without something onerous like a ban or sin tax.

[General Mung Beans]

If the government does not belong in the bedroom, it does not belong in the kitchen either.

While in this case this was a stupid law, this sentence isn't that much better. The government should damn well be in the kitchen, especially if, as in this case, it's a professional kitchen.

The law is stupid since it's seeking to force adults to limit their beverage choice while eating out to fight obesity. They have the right to choose for themselves, even if it's the wrong choice, if they should ingest sugary drinks or not.

But that doesn't mean the governement should have nothing to do with kitchens. It's the governemt that handles health inspections. It's the government that does it's best to make sure that the food that restaurants serve you won't give you the shits and make you have to clean vomit off your walls. It's the government that makes sure the ingredients used by restaurants (and store bought ingredients at home) are acually safe for human consumption. It's the government that makes sure that all employees in that kitchen follow proper food handling practices. And when a restaurant does manage to severely poison enough of it clientelle, it's the government that closes that restaurant down before it can harm anyone else.

I should have said something more along the effects of someone's mouth or stomach since I agree with you that actions which harm or adversely affect involuntary third parties should be regulated whether in the "kitchen" or "bedroom".

[Zwinmar]

Corporations have been lobbying for years to get rid of Federal restrictions put on them because of their own unsafe practices, then they cry when regulations get put in place.

They will do absolutely anything for a profit, they have to or even the owner can be ousted by the board. Oh and they are 'people' too apparently. So yeah, restrict the hell out of them so they have to act like 'decent human beings.' After all they are people right?

/sarcasm

[weemadando]

When I switch from regular to diet I lost about 20lbs over the summer.

How much do you have to be fucking drinking to lose 10kg just from switching sodas? Do you never drink water?

[Terralthra]

When I switch from regular to diet I lost about 20lbs over the summer.

How much do you have to be fucking drinking to lose 10kg just from switching sodas? Do you never drink water?

Assuming that was the only dietary change, that's about 8 12-oz cans of soda per day. Roughly 1.5 2-liter bottles daily.

[dragon]

When I switch from regular to diet I lost about 20lbs over the summer.

How much do you have to be fucking drinking to lose 10kg just from switching sodas? Do you never drink water?

I was working my way through college at a convince store that gave employees free refills. Per the pepsi site a 20oz bottle has 250 calories. And I usually has 3 refills during an 8 hour shift.

[madd0ct0r]

words.

[Darksider]

I was working my way through college at a convince store that gave employees free refills. Per the pepsi site a 20oz bottle has 250 calories. And I usually has 3 refills during an 8 hour shift.

That sounds similar to what happened to me when I started working at McDonald's. I hadn't eaten there in years, but due to easy access and free food on breaks I developed a taste for it again. I've ballooned up about three pants sizes since then.

[Raw Shark]

When I switch from regular to diet I lost about 20lbs over the summer.

How much do you have to be fucking drinking to lose 10kg just from switching sodas? Do you never drink water?

I was working my way through college at a convince store that gave employees free refills. Per the pepsi site a 20oz bottle has 250 calories. And I usually has 3 refills during an 8 hour shift.

Yeah, it's easier than you may think to lose track in that kind of scenario if you're not making an active effort at it. I worked graveyard at a convenience store for about a year and a half that gave us all the free soda we could drink (including the first one), on the assumptions that it would give us more energy for work, and that we'd just steal it anyway since it's more trouble than it's worth to inventory the stationary fountain setup. I would stand there for two hours without a single customer sometimes, and could refill my soda without leaving the register or looking up from my reading material. I honestly have no idea how much I drank; maybe 0.5-0.75 gallons daily. Needless to say, it was not good for my weight.

[xt828]

I wonder if it might be helpful, in terms of raising peoples awareness of what and how much sugar they're drinking, to establish a "standard drink" like there is for alcohol, and then have printed on the front of the drink how many standards are in it. If its a sanely mandated amount, then it won't have the serving size problem you get with the whole "servings per package" thing, and by putting it front and centre - above or below the size of drink, perhaps - it'd be fairly visible.

[chitoryu12]

So if serving sizes are regulated, what stops someone who wants more soda from just buying a second drink?

[Losonti Tokash]

Absolutely nothing, which is deliberate.

[xt828]

So if serving sizes are regulated, what stops someone who wants more soda from just buying a second drink?

Nothing. The thought only occurred to me after I was at a gathering and people were getting ready to go home, and were talking about how many standards they'd had to drink to figure out if they were okay to drive as an ongoing thing across the night. It just seemed to me that if there was a consistent measure of sugary-drink-ness then it might help people self-regulate their intake.