New York State Supreme Court Appellate Division has held that the New York City’s ban on the sale of sugar sweetened beverages in cups over 16 ounces unconstitutional, upholding a lower court decision. The ruling held that sugar-sweetened beverages were not inherently a health risk, only when not taken in moderation. It found the New York City ban, which applied to some food outlets and not to others and to some sweetened beverages, but not others, exceeded the Board of Health’s authority. The rule covered non-diet soft drinks, sweetened teas, sweetened black coffee, hot chocolate, energy drinks, sport drinks and sweetened juices. It did not cover alcoholic drinks, milkshakes, fruit smoothies, mixed coffee drinks, mochas, lattes and 100% fruit juices. It applied to delis, fast-food franchises, movie theaters, stadiums and street carts but not to grocery stores, convenience stores, bodegas, gas stations and other similar businesses.
The appeals court found that the NYC ban violated all four factors indicative of usurpation of legislative functions. They noted that the NYC ban was not an all-encompassing regulation but included numerous economic and social policy decisions, reserved to the legislature.
The appeals court did not address the issue of whether such a ban was an unconstitutional restriction on personal liberty.
While the appeals court relied on New York State law, it is worth noting that federal constitutional law, especially the First Amendment, as interpreted by the Supreme Court, contains a very high bar to regulations which provide such loopholes and exceptions. See, The Supreme Court and the Future of Obesity Policies. Obesity advocates need to be much more aware of the limits of policy-making in this area. The risk that some policies will be over-inclusive, on the one hand, but under-inclusive in other ways, will make for difficult law and adverse decisions, such as this one.
Mayor Bloomberg is serving his last term and his tenure will be noted for its commitment to improving the health of New Yorkers. Hopefully, he will spare us another petulant moment after the first court rejected the cup size ban, when on the David Letterman Show, he pleaded (with whom?) “As long as you don’t to ban ‘Cheezits’. ‘Cheezits’ are ok.”
I hope the next Mayor of New York, or any public official understands obesity is tougher than you think. See, Note to Mayor Bloomberg: It’s Harder Than You Think, September, 2102.