The Real Impact of the NYC Soda Ban's Well-Deserved Defeat

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Public health activists in New York City and beyond will feel the sting from the defeat of the city's misguided soda ban. And that's a good thing.

July 5, 2014

Marlith / Wikimedia CommonsLast week, the New York State Court of Appeals—the state's highest court—dealt a final death blow to New York City's reviled soda ban. The decision, which upheld two lower court rulings, drew an important line in the sand across which New York City's activist health department may no longer cross.

Like the lower courts before it, the high court held that the city's health department, an unelected board appointed by then-mayor Michael Bloomberg, violated the state constitution by exercising legislative powers it does not possess in order to enact the soda ban. That's important, because it means that the city's health department, which previously banned trans fats, for example, may no longer make law and policy choices without prior legislative guidance. The court also ruled that the soda ban was discriminatory in its impact, since many places that sell large sodas, including 7-Eleven, were exempt.

While the lower courts had ruled unanimously against the ban—first in a one-judge decision, and later in a three-judge appellate decision—the state high court ruling was a 4-2 decision (with one judge abstaining).

Though, as I note, the majority decision largely reiterates the strong denunciation by the lower courts of New York City's soda ban, the dissenting opinion issued by the court last week is worth a look for the unprecedented lengths it goes in a failed attempt to justify and uphold the soda ban.

To do so, the dissent, authored by Judge Susan P. Read, argues that rules adopted by the city health department are on par with state law.

"[Its] authority to regulate the public health in the City is delegated by the New York State Legislature, and its regulations have the force and effect of state law," writes Read.

That's a positively bizarre argument. After all, state law trump the laws of any one city. Under Judge Read's theory, the rules enacted by the unelected city health department carry greater force in New York City than those laws passed by the mayor and city council. Effectively, Read would give the health department veto power over all New York City laws that have any bearing on public health.

While that may sound like a stretch, Read actually embraces this characterization in her dissent.

"If a regulation promulgated by the Board in the Health Code conflicts in some direct way with a local law, the Board's action trumps the [City] Council's," she writes.

That's downright chilling. Under that interpretation, the health department would have the authority to mandate any number of health-related rules by which city residents must abide. The health department could, for example, mandate early bedtimes for New York City residents. The city never sleeps? It does now. And the city council would be completely powerless to do anything about it.

What's more, a mayor at odds with the city council on any number of health issues could simply ignore the council's judgment on those issues and ask his health department to pass rules the city council adamantly opposed. In practice, that's exactly what happened with the soda ban—a law then-Mayor Bloomberg found the city council unwilling to pass.

In her dissent, Read also discusses New York City's first-in-the-nation trans fat ban. She argues that because the city council enacted the trans fat ban before the legislature later adopted rules implementing the ban, that gave the health department a green light to adopt the soda ban.

That's one way to read the rule. But I don't think it's the right way to read it. Another way to read it is that the New York City trans fat ban was unconstitutional when it was adopted by the health department. Still another way to read it is that the city's trans fat ban may still be unconstitutional. I think a strong case can be made for the latter reading I suggest. But I think the former reading—that the trans fat ban was unconstitutional on the day it was adopted, and that any similar future ban enacted by the health department would be unconstitutional, too—is now settled law.

The legal reach of the soda ban's defeat technically stays within the jurisdiction of the New York State courts. But the ruling nevertheless has national ramifications.

New York City health department rules often find their way elsewhere around the country. Right now, for example, the FDA is attempting to copy New York City's trans fat ban. The less power the city's health department has to make bad food rules, the fewer such rules we'll see elsewhere in this country.

The New York ruling also comes as two states have similarly rebuffed recent efforts to crack down on soda sales. The California legislature rejected an absurd proposal to slap warning labels on soda, while the Illinois legislature rejected a soda tax. Collectively, these developments should be seen for what they are—as victories for consumers, beverage makers and sellers, and supporters of food freedom alike.

New York City's soda ban is dead. For good.

Baylen J. Linnekin, a lawyer, is executive director of Keep Food Legal, a Washington, D.C. nonprofit that advocates in favor of food freedom—the right to grow, raise, produce, buy, sell, share, cook, eat, and drink the foods of our own choosing.

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  • My blood pressure would be a lot lower if I didn't constantly have to listen to these control freaks trying to run everybody's lives. I'm sure I'm not the only person whose blood pressure is raised by these nannies' proposals, and it can't be good for public health.

    So the nannies need to be forced to shut up, for the public good.

    or to reply

  • Thanks, TED. You reminded me to take my BP meds.

    or to reply

  • I don't know why Ted keeps auto-capitalizing on my iPad. It's almost as if the auto-correct is left-leaning or something.

    or to reply

  • New York City's soda ban is dead. For good.

    The biggest mistake of rookie zombie and vampire hunters everywhere.

    or to reply

  • The health department could, for example, mandate early bedtimes for New York City residents.

    Too extreme. Just stick with the implanted odometer-like REM monitors.

    or to reply

  • Oh, and why did none of you motherfuckers tell me about the Skyrim mod that changes all the dragons into trains from Thomas the Tank Engine? That shit is GOLD!

    FOR SODORGARDE!

    or to reply

  • 8-)

    "Thomas! I thought you were my friend!"

    or to reply

  • Spawn of Nyarlathotep

    You also need the one that changes all the fight music to "Danger Zone" by Kenny Loggins:

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  • The California legislature rejected an absurd proposal to slap warning labels on soda

    Instead, in order to vote/drive/procreate/whatever, everyone must read and sign a comprehensive health-warning document.

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  • Rich 7.5.14 @ 9:02AM #
    "The California legislature rejected an absurd proposal to slap warning labels on soda"

    This was some mistake or other. Maybe there was a rider on it that cut taxes by $0.0001 or something.
    No way would something like this fail to pass in the CA sate legislature.

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  • Pope Jimbo

    Sadly, this company appears to have gone belly up before its time:

    http://web.archive.org/web/200.....howto.html

    ConsentCondom.com

    Basically a condom that comes with a fingerprinting kit.

    or to reply

  • "If a regulation promulgated by the Board in the Health Code conflicts in some direct way with a local law, the Board's action trumps the [City] Council's," she writes."

    If you go to bed early, eat your fruits and veggies you have nothing to worry about! The health board doesn't care about you so get over yourself. It just needs to protect the society. SO-SY-YETI!

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  • or to reply

  • The Late P Brooks

    "If a regulation promulgated by the Board in the Health Code conflicts in some direct way with a local law, the Board's action trumps the [City] Council's," she writes.

    In P Brooks -topia, judges would be expected to know and understand the law. And "judicial deference" would be to freedom.

    Kkkrazy.

    or to reply

  • I waded deep into the Fbook Derp this morning about the Opie and Anthony firing by Sirius. I need one of those chemical lab emergency showers.

    or to reply

  • or to reply

  • Specail Sauce

    Just Curious...

    I was recently diagnosed with Aspergers and have come to realize that some of my symptoms, such as a need for consistency, logic, and my disdain for appeals to emotion and adherence to authority all coincide with my penchant for libertarianism. I was curious if anyone else out there has any similar experiences with Aspergers or high functioning autism and credit it in part to their political proclivities?

    or to reply

  • Ken Shultz

    I think it would be a mistake to chalk proclivities for libertarianism up to an autism spectrum disorder.

    I can see how some aspects of libertarianism might be more attractive to people who are Asperger advantaged, but there are also plenty of non-Asperger libertarians who are put off by the extreme logically consistent aspects of libertarianism.

    A lot of libertarians are, for instance, thoroughly put off by Randian systematic logic. So, no, I don't think libertarianism is especially attractive to people with Aspergers.

    My understanding is that people with Aspergers can become fundamentally obsessed with things like model airplanes, baseball statistics, or really anything else. If I put libertarianism on that list, it makes the list of things Asperger people get into seem even less feature-consistent.

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  • Ken Shultz||#

    "My understanding is that people with Aspergers can become fundamentally obsessed with things like model airplanes, baseball statistics, or really anything else."

    If you were into baseball with Aspbergers, isn't it likely that you would be into baseball without it?

    Maybe your appreciation of it would be qualitatively different--or maybe it wouldn't. There are people into baseball statistics that do not have Aspbergers.

    log in or register to reply

  • Specail Sauce||#

    Yes, I have had a lifetime obsession with meteorology and precision/order (I manage a laboratory which fits in nicely with my interest in science and inner need for repetition and accuracy). Thanks for the response, it never occurred to me that some might come to libertarianism for the exact opposite reasons it appeals to me. It makes perfect sense, and illustrates my inability to make sense of motivations that wouldn't adhere to some form of rigid consistency.

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  • Ken Shultz||#

    "The health department could, for example, mandate early bedtimes for New York City residents."

    The progressive sugary soda ban isn't fundamentally different from Obama's attempt to coerce business owners into violating their religious convictions.

    Neo-progressives are upset that they can't force people to do things against their will that violate their religious convictions, but it wasn't the religious aspect that made what Obama was trying to do wrong.

    It's using the government to coerce people to do things against their will that's wrong. Even when it's legal, it's wrong. Using the coercive power of government to mandate early bedtimes would be wrong regardless of whether the progressives trying to implement that silliness had a religious motive.

    Religion isn't the issue; it's a red herring. Using the coercive power of government is the issue.

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  • The Late P Brooks||#

    some of my symptoms, such as a need for consistency, logic, and my disdain for appeals to emotion and adherence to authority all coincide with my penchant for libertarianism.

    Don't worry. Libertarianism is covered under Obamacare. Take your pills, and embrace Big brother.

    FREEDOM IS SLAVERY.

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  • american socialist||#

    Hi Baylen, I thought the purpose of your group was at least in part to protect the interests of organic farmers and the food that is sold in farmer's market, but yet 75% of the articles you write are about soda bans, the merits of shitty food served in schools, and the threat of usda regulation. Is there a reason for this?

    Do you have kids and send them to public schools. If so, do you prepare their lunch at home?

    Do you think it's worth pointing out in your screeds against the diabolical threat of a ban on soda tubs that such laws actually work in combating obesity?

    Now that Richard Mellon scaife is dead how is the job market and funding levels looking for right-wing hacks?

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  • Francisco d'Anconia||#

    Is there a reason for this?

    Um...

    ...liberty?

    You do realize this is a libertarian site and that libertarians are not right wing, right? I mean, despite, endorsing a philosophy that's killed 100,000,000 people, you're not stupid, right?

    log in or register to reply

  • The Late P Brooks||#

    such laws actually work in combating obesity

    [citation needed]

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