The New York State Court of Appeals has affirmed lower court decisions banning the sale of sugar sweetened beverages in cups over 16 ounces capacity. The Court of Appeals decision, as was the case in the lower courts, focused on the power of the New York City Board of Health to make several policy decisions in this area when the New York City Council and the New York State Legislature had not acted in this area.
Predictably, some activists pointed to the money employed to fight the City’s regulation. They miss the point. This regulation was bad policy at the outset. Those who think obesity is the result of “One Thing” are always disappointed when it turns out that changing the “One Thing” does not affect the accumulation of excess body fat. In addition, the regulation had numerous inconsistencies. It suffered from “over-inclusion” because it affected everyone buying a beverage in New York City and from “under-inclusive” in that other beverages of same or greater caloric content were not covered.
No doubt those who believe in the value of restricting marketing of food items will be back at work trying to find a way to work around this decision. These advocates need to keep in mind that the Supreme Court (and other courts) have set a very high bar on legislative restrictions on marketing. These cases are based on First Amendment (which was not even touched in the New York City case) to arbitrary restrictions on commercial practices. Restricting or banning advertising of food to children is a frequent mantra in prevention-of-obesity circles. The Supreme Court is pretty clear that such restrictions are not likely to be upheld.