New York City mayor Michael Bloomberg has been busy burnishing his legacy as a fierce public health advocate. He banned smoking in public places, restricted trans fats in restaurants, created sanitary grading in restaurants, required calorie counts to be posted in fast food outlets, and imposed mandatory sentences for illegal firearms. Just days ago, he announced a bold move to force retailers to keep cigarettes hidden from view.
Mayor Bloomberg has bumped up against vested corporate interests who have raised questions about the legality of his actions. Has the mayor exerted unilateral authority without the approval of the elected City Council? Has he treaded on areas exclusively within the federal government’s realm (under the commerce clause of the US Constitution)? And do his compelled health disclosures violate the First Amendment’s protection of free speech?
The mayor’s executive order limiting the portion of high-sugar beverages to a maximum 16-oz size has become one of his most controversial policies. The portion restriction included sodas, energy drinks, fruit drinks, and sweetened teas. But it excluded alcoholic beverages and drinks that are more than 50% milk, such as lattés. The ban applied to restaurants, movie theaters, and mobile food carts. But it did not apply to supermarkets and convenience stores.
The mayor’s proposal was met with fierce industry opposition and public outrage against “Nanny Bloomberg.” On March 11, Justice Milton Tingling Jr of the New York State Supreme Court blocked the soda portion ban in response to a legal challenge lavishly financed by the food and restaurant industries. The trial court reasoned that the mayor exceeded his authority by enacting the ban unilaterally, circumventing the New York City Council.
Would the Ban Work?
Nearly 6 of 10 New York City residents are overweight or obese, as are nearly 4 of 10 schoolchildren. This is unacceptable in our society, knowing the increased risks of diabetes, cancer, and heart disease associated with obesity. Ever-expanding portions (“super-sized” and “Big Gulp”–style servings) are important contributors to obesity. When portion sizes are smaller, individuals eat less but feel full. Sugar is high in calories and promotes fat storage in the body, and many people find it hard to resist. On February 13, public health experts petitioned the FDA to determine safe levels of added sugars for beverages as part of a comprehensive strategy to reduce dangerously high sugar consumption. The so-called “war on sugar” is a public health imperative backed by science.
Should public health officials have to “prove” that a portion limit works beyond any doubt? In most areas, legislators don’t have to show incontrovertibly that laws will be fully effective, only that they are reasonably calculated to move policy in a positive direction. Public health officials look to science for answers and seek solutions that have a chance of working—if not in isolation, then in combination with other measures, such as providing calorie counts, establishing “soda taxes,” and making fruits and vegetables available in schools and poor neighborhoods.
Is the Ban Consistent?
The industry stoked the fires of public discontent with its campaign against the ban’s “inconsistencies.” Why doesn’t the ban apply to milky drinks, why can 7-Eleven sell large sugary drinks when restaurants cannot, and why not ban refills? Justice Tingling went so far as to call the ban “fraught with arbitrary and capricious consequences,” filled with loopholes.
But Mayor Bloomberg did what every other politician does—balance public health and safety with realpolitik, political realism. The justice ruled that balancing public health and economic considerations is “impermissible,” but this makes no sense. Policy makers always have to balance public goods against the costs. Moreover, the judge’s reasoning implies that unless public health does everything, it can do nothing. The art of politics is compromise.
Does NYC’s Board of Health Have the Power?
Admittedly, the soda ban would have been better coming from the city’s elected City Council. But the city’s Board of Health has authority to act in cases where there is an eminent threat to health, which is exactly what the obesity epidemic is.
The Board of Health also has explicit authority over the food supply and chronic disease. This agency comprises experts who are entitled to a degree of deference. And from a political perspective, if the elected legislature refuses to act in the face of a dire public health threat, then the Board of Health has a responsibility to do so.
Should Industry Have an Outsized Influence on Public Health Policy?
The fingerprints of the food and restaurant industries—with their economic conflicts of interest—are all over the opposition to the soda portion ban. Industry undertook a multimillion-dollar campaign, flying banners over the city and plastering ads over the subways. And they immediately filed suit and hired the most elite law firms. Rather than choosing to market healthy products, they chose to fight—reminiscent of “Big Tobacco.” Their unremitting campaign drove New Yorkers to oppose the portion ban, while politicians in other states scrambled to show their disapproval.
Now, Mississippi is about to pass a law that would prohibit calorie counts on menus, capping portion sizes, and keeping toys out of kids’ meals. The restaurant association and some other business groups intensely lobbied for the “anti-Bloomberg” law. Imagine that, in a state with the highest obesity rate in the United States!
In New York, beverage companies bankrolled Hispanic and African American civil rights groups, who then teamed up to fight the soda portion ban. The industries’ ploy is a new low, given that poor minority communities are most burdened by obesity. These same industries have been financing community organizations that have actively opposed soda taxes in towns across the United States, effectively defeating a major public health initiative supported by the World Health Organization. We are accustomed to fierce lobbying for personal gain in the United States, but that doesn’t mean we should be duped by industry propaganda.
Is a portion limit really such an assault on freedom? It doesn’t stop anyone from buying soda. If consumers really want, they can buy several smaller drinks. It doesn’t stop companies from giving refills.
There is really no great burden put on individuals—only a little nudge in the right direction. At the same time, a portion limit could make meaningful changes in the drinking habits of New Yorkers.
Why is the industry fighting this so fiercely? Because if it had been shown to be successful in New York City, it would likely be emulated in major cities in the United States and worldwide. Isn’t that exactly what we need to stem the tide of obesity?
About the author: Lawrence O. Gostin, JD, is University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center, and Director of the World Health Organization Collaborating Center on Public Health Law and Human Rights.
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