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Issue Analysis

    NY Soda Ban Gets The Shaft...Errrr...Straw

    03/11/2013

    Months ago, New York's Mayor Bloomberg put into action a Very Serious Plan designed to subvert New York City's life-draining, obesity-encouraging, self-immolating commitment to drinking soda out of containers designed to hold more than 16 ounces of liquid. As of yesterday, the city had its health department trained and ready to perform surprise sting operations on unsuspecting food service establishments across Manhattan as they began their nanny-state crackdown on New York's most pressing danger: dastardly sugary beverages.

    This afternoon, however, the New York Supreme Court issued a permanent injunction against the Board of Health rules, effectively barring NYC and Bloomberg, from their Quixotic quest to rid the world of the Big Gulp. 

    A state judge on Monday stopped Mayor Michael Bloomberg's administration from banning the sale of large sugary drinks at New York City restaurants and other venues, a major defeat for a mayor who has made public-health initiatives a cornerstone of his tenure.

    The city is "enjoined and permanently restrained from implementing or enforcing the new regulations," New York Supreme Court Judge Milton Tingling decided Monday.

    The regulations are "fraught with arbitrary and capricious consequences," the judge wrote. "The simple reading of the rule leads to the earlier acknowledged uneven enforcement even within a particular city block, much less the city as a whole….the loopholes in this rule effectively defeat the state purpose of the rule."

    Actually, the Big Gulp didn't fall under the Board of Health regulations, which is part of the reason the Supreme Court was so keen on striking down the prohibition. Convenience stores like 7-11 were excluded from the law, meaning that while a person couldn't Super-Size their beverage at a corner McDonalds, they could obtain a bucket of soda easily twice as large at the Stop 'n Shop across the street. Supermarkets, which like most major businesses are licensed and regulated by the state of New York, were also exempt, laying enforcement of the law at the feet of independent restaurants, mobile food vendor stands, and food truck proprietors who got their licenses to operate from the city. And, of course, there was no ban on simply purchasing multiple 16oz drinks instead of just one exceedingly large drink. All the ban really would end up doing is cutting into the profits of New York businesses that pay their taxes directly to the city, and cutting into the choices that New Yorkers should, by all rights, be allowed to make for themselves.

    But that's an insignificant detail when people's health and well-being are on the line! And you know Mayor Bloomberg hates having to share a subway seat with an overweight rider. When he rides the subway. Which is probably never. But still.

    In addition for the vaguness in application, the court found that the Board of Health, which was already faced with the monumental task of enforcing the soda ban lest enterprising New Yorkers begin making huge profits off black-market double-size plastic cups, did not have within its job description the authority to keep New Yorkers from stuffing their fat faces with sugary drinks. Apparently, the Board's ability to ban substances is limited to only dire situations, where distribution and consumption of the product would contribute to the spread of dangerous chonic illiness. Being obese, according to the court, may be inconvenient for your fellow New Yorkers, and put you at a disadvantage in a potential zombie apocalypse (my words, not theirs), but as of March 11, 2013, no such imminent threat of danger exists that would make banning large sodas relevant.

    If Bloomberg wants to ban sodas, according to the court, he's going to do it the right way - by pushing the ban through the city's legislative body, the City Council - not attempting to circumvent the will of the citizens by forcing the Board of Health to do his bidding, against the confines of their duties.

    This is the final appeal in state court from a lawsuit launched by New York City restaurants almost immediately after the initiatives were put into place. The ban could go to the Supreme Court, but appeal seems unlikely. For now, at least, it seems liberty has victory in the state of New York.

    1 comments
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    03/14/2013

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