Soda ban ruling: Not the win we’d hoped for

Few people ruffle my libertarian fur more than Mayor Michael Bloomberg. So of course I celebrated the July 30 ruling against the Mayor’s soda ban. But I limited the number of 16-plus ounce drinks that I popped in celebration. Not for health reasons, but because the win wasn’t really the libertarian victory I was looking for. The actual win leaves the door open for future soda bans in New York and other cities.

Mayor Bloomberg’s anti-soda crusade officially began on September 13, 2012 when the city’s unelected Board of Health adopted amendment §81.53. The amendment, titled “Maximum Beverage Size,” prohibited many city stores, movie theaters, and restaurants from selling sodas larger than 16 ounces in size. The reason? Mayor Bloomberg decided New Yorkers were too fat, and soda would suffer the consequences.

A whole host of groups affected by the ruling – including the New York Statewide Coalition of Hispanic Chambers of Commerce, The New York Korean-American Grocers Associate, and the National Restaurant Association – filed suit one month after the Board of Health enacted the ban. The New York trial court ruled against the soda ban on March 11, 2013. Bloomberg and company appealed.

On July 30, the New York Supreme Court Appellate Division upheld the trial court’s ruling against the soda ban. In a libertarian dream world – or, simply, a world that respects individual choices – the court would have chastised the mayor’s office for thinking it knows best about individual health choices, for depriving individuals of their ability to easily buy a legal product, and for saddling one industry with all the blame for a vast obesity problem.

Instead, the court invalidated the soda ban because it violated the city’s separation of powers doctrine. The city’s legislature never voted for a soda ban, nor had the legislature granted specific authority to the mayor’s office to tackle the obesity problem. In short, the Board of Health – part of Mayor Bloomberg’s executive branch – had usurped power from the legislative branch to act as lawmakers who wanted to ban soda.

The ruling is certainly a win for libertarians. A major factor in the growth of government is the unchecked lawmaking by unelected bureaucrats, be they at the federal Environment Protection Agency or New York City’s Board of Health. By making certain that only legislative branches pass actual laws, we, the people, can better keep track of new laws, and we can hold our legislators accountable for the laws they pass.

The court, however, did not say anything about individual liberties or the equity of law across beverage and food industries. This gave hope to proponents of the soda ban who see the New York ruling as a procedural hurdle – cumbersome, but manageable. Consider the food regulation advocate Marion Nestle who optimistically wrote after the ruling, “Even if the city loses the final appeal, the 16-ounce soda cap is the writing on the wall for soda companies.”