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

Stephen Richer Law Student, University of Chicago
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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.”

A resurgent soda ban may not happen in New York City. Mayor Bloomberg has already filed for leave to appeal the decision, but the high court will likely affirm the anti-Bloomberg ruling on the same grounds as the intermediate appeals court. Bloomberg will then try to solve the problem by forcing the issue through the legislature. This might not work either, as Bloomberg has aggravated many local politicians in his damn-the-procedure approach to the soda ban.

The real worry is what other states will do. Bloomberg’s bans on trans-fats and smoking served as models for the bans implemented by other states. And not all other states and cities have the same strict separation of powers doctrine as New York. Bloomberg’s soda ban might have already won the day had he acted in, say, Boston.

Before this virus starts to spread, we defenders of liberty need to raise as many non-procedural arguments against the soda ban as we can. The soda ban strips individual’s of their free choice; it falls unevenly on one sector of calorie production; and it has a disparate impact on certain soda salespeople. For liberty and equality under the law, soda bans must be rebuked.