New York, NY – Ban On Big Sodas Could Face Legal Test

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    Photo Credit: EPA/JUSTIN LANENew York, NY – If New York City bans big sodas, what’s next? Large slices of pizza? Double-scoop ice cream cones? Tubs of movie-theater popcorn? The 16-ounce strip steak?

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    Opponents of the proposed ban may use that slippery-slope argument along with other legal strategies to try to block the first-in-the-nation rule.

    Mayor Michael Bloomberg wants to bar restaurants, movie theaters, sports arenas, food carts and delis from selling sodas and other sugary drinks in servings larger than 16 ounces, saying it is a way to fight obesity in a city that spends billions of dollars a year on weight-related health problems.

    Whether that’s legal, though, is a matter of dispute and all but certain to be tested.

    “We’re going to look at all of our options to protect our business, our rights to do business and our rights not to be discriminated against. We won’t take anything off the table,” said Steve Cahillane, a senior executive with Coca-Cola.

    The city Board of Health, appointed by the mayor, is expected to approve the measure after a three-month comment period. It could take effect as early as March, unless the critics who accuse Bloomberg of instituting a “nanny state” can get the courts or state lawmakers to step in.

    It’s not just businesses and industry groups that could sue. In theory, any individual affected by the ban could bring a legal challenge.

    But it wouldn’t be enough to simply claim that the ban infringes on personal freedom, said Rick Hills, a New York University law professor specializing in local government law and New York City.

    While Bloomberg administration officials say they have no plans to move against solid foods, any local government could ban red meat – or even all animal products – without violating a person’s right to life, liberty and the pursuit of happiness, Hills argued.

    “The court has never struck down a health measure that was designed to protect people from unsafe diets or unsafe foods,” he said. Whether the ban is on rat poison or on sugar, government is allowed to protect people from themselves, he said.

    And Hills said that opponents would have to do more than argue that the law affects one source of sugar more than others. Courts, he said, have repeatedly ruled that the government can try to eradicate societal ills one step at a time.

    Rob Bookman, an attorney who has represented the New York Restaurant Association, predicted opponents will argue that the city Health Department is overstepping its authority and infringing on federal or state power.

    If this ban is within the city’s rights, then there’s nothing to prevent, for example, a prohibition on the 16-ounce New York strip steak, he suggested.

    “We have one federal Food and Drug Administration that determines what products are legal or not legal, or safe for consumption or not safe for consumption,” he said. “We cannot have 30,000 or so localities around the country being their own FDAs” without killing the national food industry.

    At a Board of Health meeting this week, members seemed to suggest they would, in fact, welcome more expansive measures. Board member Bruce Vladeck asked why the city wasn’t considering portion-size limits for buttery movie theater popcorn.

    “The popcorn isn’t a whole lot better from the nutritional point of view,” he said.

    In a statement, Health Department spokeswoman Alexandra Waldhorn said the Board of Health’s responsibilities include “the control of chronic disease and food service establishments.” She added: “Limiting the portion size of sugary beverages served at New York City restaurants is a valid exercise of these authorities.”

    Bennett Gershman, a constitutional law professor at Pace University, argued the ban would afoul of the U.S. Constitution’s Commerce Clause.

    Local governments “can’t pass laws that do impose burdens on the free flow of commerce between states,” he said. “If it is too much of a burden, the Supreme Court says that states can’t do it. Only Congress can impose burdens on commerce. States can’t.”

    Gershman suggested the measure would impose a burden by requiring out-of-state companies to produce different size drink containers and offer different services for customers in New York.

    But Hills scoffed at that line of reasoning, saying the courts have generally accepted such an argument only in regard to transportation rules that might, for example, prevent some trucks from driving across state lines.


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    20 Comments
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    curious
    curious
    11 years ago

    If they get their hands on our healthcare, they will dictate our health. Bloomberg, stay the heck out of my health. This is not Greece. Would you like it to be?

    crock-pot
    crock-pot
    11 years ago

    is this called a free country because the riders are free to make any laws they want, hellooooo since when can the government force us what to buy and what not, we have to stop this now, before its to late.

    11 years ago

    what will i do without sugary fattening disgusting massive drinks when i visit NYC

    Mark Levin
    Mark Levin
    11 years ago

    There are so many ways they could sue on this. They could sue on restriction of trade because it allows certain stores to sell the drinks & not others.

    zelmo
    zelmo
    11 years ago

    Next Ban – Thursday nite Chulent!

    shredready
    shredready
    11 years ago

    it will force people to buy two drinks instead of one at a higher cost.

    what about dinner that give free refills will that be illegal too

    Zeidy
    Zeidy
    11 years ago

    And when will Bloomberg impose the 1 child policy like China

    alanjay
    alanjay
    11 years ago

    Why not BAN cigarette sales. They are harmfull to smokers and even
    those around the smoker. This is MORE harmfull than sugar drinks.

    Member
    11 years ago

    When a man can just buy 2 large sodas or usually out of the fridge, this is just an angry measure trying to tout that there is a health concern. It is a nanny state and Bloomberg is leading the way to a conspiracy to destroy the happiness of usual citizens in the future. Wonder where this heresy will go in the USA?

    rationalman
    rationalman
    11 years ago

    i say restaurants should sell large seltzers and on the side sell the syrup that you can then mix into it at your table….

    Nobody
    Nobody
    11 years ago

    Although I sympathize with the lawsuit, stupid is not unconstitutional. As someone who thinks that the Commerce Clause has been stretched beyond all imagination, there is just no way the Feds have the right to dictate how much soda is dispensed at a time, inside the state. As such, there is no dormant Commerce Clause issue (which is basically the claim – that the Federal Government should be the only one dictating how large sodas served in movie theaters can be).

    Avreich1
    Avreich1
    11 years ago

    When I was first drafted into the IDF in the early 60s, the standard size of a soft drink in the ‘Shekem’ (=PX canteen) was 200 mils. One company held the monopoly of supply, and it was not going to alter its business plan to suit thirsty soldiers. Two hundred mils are not enough? Buy another bottle and drink, gezinterheit.

    Later, when soft drinks in cans were introduced, we got our soda in 330 mil sizes. Still full of sugar, but who cared? We were all young.

    I now see that Israeli fast food outlets are aping the Americans with larger and larger volumes of soft drink containers.

    But what is all-important, morai verabotai, is NOT the size of the drink but rather its contents. No one – but no one needs to drink a 32 ounce slug of soda laden with sugar, sucrose, fructose or indeed any other ‘ose’.

    If one is really that thirsty, drink diet soda; that way one can avoid putting on excessive weight and unnecessary fat, and avoid (to a certain extent) contracting Type 2 diabetes.

    Best of all, drink ice-cold water. After all that is what הקב”ה provided us with, and if it was good enough for Him it is good enough for us.

    Shabat shalom from Yerushalayim habenuyah!

    vitriol
    vitriol
    11 years ago

    anybody who challenges this obviously has nothing to do with themselves. There is only a slippery slope if you are some kind of half -cocked liberal or law professor. Bloomberg has expressed no objection to pizza or anything else, so since this is entirely his bill and his idea, why should anybody think that it would be expanded to anything else?