Tuesday was supposed to be a day of celebration for New York Mayor Michael Bloomberg when the new limits he proposed on big, sugary drinks (aka the soda ban) were supposed to take effect. Yet, on Monday, a judge blocked the proposed ban, calling it “arbitrary and capricious” and making many New Yorkers happy knowing that large soda drinks are not going anywhere. At least not for now.
“It’s the right thing to do from a civil liberties point of view. Granted, people should make better decisions, but why not educate people rather than dictate to them what to do?” Sean Doolan told the New York Times. “If you want to drink large drinks and become obese, that’s your right,” added another fellow New Yorker who was interviewed at a movie theater on West 42nd street.
Not surprisingly, you could hear a similar sentiment from the American Beverage Association, which brought the lawsuit on behalf of companies like Coca-Cola and PepsiCo. Chris Gindlesperger, spokesperson for the association, told NPR that “the real issue here is that New Yorkers are smart enough to decide for themselves what’s right to eat and drink, and they don’t need government help doing that.”
For the beverage companies it wasn’t just a moral issue. I suspect that their sigh of relief was greater than Bloomberg’s sigh of disappointment. This was a fight they fought hard, knowing that it might have consequences on a much greater scale than just New York City itself, as Bloomberg called for other cities around the world to adopt similar limits.
The new regulation, which would have limited the size of sugary drinks served at restaurants, movie theaters and other food service establishments to 16 ounces, not only directly connected soda drinks and obesity, but also reminded many, including investors, that even the powerful beverage industry is not immune to regulatory risks. In other words, for the beverage industry, the soda ban was nothing but trouble.
In an article it published in July 2012, under the title Absurd: Ridiculously Unreasonable, Unsound and Incongruous, the American Beverage Association explained why it believes there’s nothing wrong with the current situation.
“We’re delivering what Americans want and helping people find the beverage that’s right for them with our Clear on Calories initiative. By placing new calorie labels on the front of every bottle, can and pack we produce, we’re giving consumers the information so they can choose the beverage that is best for them and their families.”
If you think you’ll find support for this perspective or validation of the association’s claim of a weak link between soda drinks and obesity in the judge’s decision, then you’re wrong. Actually, in his ruling, state Supreme Court Justice Milton Tingling wrote that “the reasonableness for enacting the Rule meets the criteria under Article 78 standards.” The reasons he found the ban arbitrary and capricious have nothing to do with the need to regulate soda drinks or their link to obesity, but with the loopholes in the ban.
“It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the rule … serve to gut the purpose of the rule,” he wrote.
Tingling also found that New York City’s board of health, which approved the ban last September, had overstepped the authority it was granted to fulfill its mission: protecting against and preventing diseases. “That authority,” the judge said, “does not include the power to limit or ban a legal item under the guise of ‘controlling chronic disease.’”
Bloomberg said he would immediately appeal, and as the Times reported, he fiercely defended the rationale for the rules at a quickly arranged news conference, saying, “I’ve got to defend my children, and yours, and do what’s right to save lives. Obesity kills. There’s no question it kills.”
So while this fight is far from being over, at least the American Beverage Association was happy to hear on Tuesday that there’s one place in America where it shouldn’t expect any trouble in the near future, or more likely. never. On the same day that judge Tingling knocked down Bloomberg’s ban, it was reported that lawmakers in Mississippi are moving ahead with a bill that is widely known as “the anti-Bloomberg” bill.
As NPR reported, the bill, now on the governor’s desk “would bar counties and towns from enacting rules that require calorie counts to be posted, that cap portion sizes, or that keep toys out of kids’ meals.” If you wonder why a state with the second highest obesity rates in the country (32.2 percent) would block such preventive measures, you could check with Rep. Gregory Holloway, a Democrat who ushered the bill through the state House.
Holloway explained that the goal is to create consistency in nutrition laws across the state. “We don’t want local municipalities experimenting with labeling of foods and any organic agenda. We want that authority to rest with the legislature,” he told NPR.
While aspiring for consistency is certainly an argument that shouldn’t be dismissed, I guess it’s no wonder that the bill, as NPR reported, was heavily supported by groups like the restaurant association, the small business and beverage group, and the chicken farmers’ lobby. They definitely know who is going to benefit from this bill.
Raz Godelnik is the co-founder of Eco-Libris and an adjunct faculty at the University of Delaware’s Business School, CUNY SPS and the Parsons The New School for Design, teaching courses in green business, sustainable design and new product development. You can follow Raz on Twitter.