New York City Mayor Michael Bloomberg’s world-famous ban on supersized soft drinks has met a bad end in the state’s Supreme Court. Justice Milton Tingling reviewed the history of municipal government in New York, combed over the scientific arguments of Bloomberg’s health department and the businesses and workers opposing the ban, and dealt the diminutive mayor a knockout, striking down his 16-ounce limit on sugary drinks as “arbitrary and capricious.”
The drink-size law had attracted world attention as a new and vicious salient in the public health war on sugar. Bloomberg’s ambitious but loophole-ridden soda-pop law is founded on strong evidence that obese citizens consume a greater volume of sugary drinks. But there is not much indication that those drinks in particular are to blame for widespread obesity, nor that limiting cup sizes would help.
Moreover, the new rules were to apply only to city-regulated food vendors, chiefly restaurants and food carts. Even though Bloomberg’s initative was widely described as a “Big Gulp ban,” convenience stores like 7-Eleven could not be covered, nor could groceries, bodegas, or vending machines. And ultra-sugary fruit smoothies and fat-rich milkshakes were explicitly exempted. This had petitioners ranging from the New York Korean-American Grocers Association to the Teamsters union complaining to the state court that the drink limits were irrational and economically unfair. Even some Democrats and leftists who are otherwise fans of fairly interventionist government felt Bloomberg was making himself look vaguely silly, and of course libertarians applied the truncheon unceasingly to Bloomberg, who, as Luiza Ch. Savage points out in her profile, has set his sights on a much broader scale.
But Justice Tingling’s decision highlights a procedural aspect of the pop war that went underexamined in the pell-mell, all-American rush to defend the individual privilege of glugging a large Coke. Bloomberg did not go to the city’s elected council to pass a bylaw against Big Beverage; he acted unilaterally through his appointed board of health, which has the authority to make ordinances for the “public health of the city.” That is an awesome power, but, as Justice Tingling noted, not an unlimited one. The legislature’s original intention in allowing the mayor to operate a health board was clearly to arm against “communicable, infectious and pestilent diseases.” The judge identiﬁed Bloomberg’s attempted analogy between obesity and cholera or AIDS as a new step beyond the board’s traditional field of activity.
As much as Bloomberg may have needed humbling, the court’s rebuke to an increasingly ambitious “public health” establishment may be equally important. There can be scientific usefulness in applying “communicability” as a metaphor, and epidemiology as a tool, to non-communicable syndromes such as obesity. These concepts can even be applied to social problems like gun crime and teen pregnancy. But if the pathogen metaphor is allowed to expand without some limit—if governments are permitted to extinguish human behaviours, preferences and ideas as if they were bacteria or building fires—then public health becomes overt social engineering and individual liberty goes out the window upon any health or “social cost” pretext at all.
This issue, it is worth emphasizing, does not depend on whether a can of Sprite is, in some objective sense, bad for you. The manufacturing standards of the people who make Sprite are essentially perfect; unit for unit, soda pop sold in America might carry the lowest risk of adulteration of any food item ever mass-produced by humans. Bloomberg’s Gordian-knot approach could only seem plausible in a world of intensifying American psychosis about food, a world in which food is overwhelmingly safe, cheap and decent.
Spend 30 seconds in any bookstore and you cannot fail to see how weird suspicions about fundamental components of our food—salt and sugar and carbohydrates and caffeine and gluten—have evolved, like living creatures rushing into an abandoned evolutionary niche, to replace the forgotten concerns about spoilage and insects and sawdust that food regulation was invented to counter. The problems get less serious, but the bureaucracy remains the same size and clings to the same weapons; indeed, one wonders what silly moral panics the Bloombergs of a hundred years from now will be whipping up.