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Bloomberg’s Soda Ban Ruled Unconstitutional

Today, an appeals court ruled that New York City’s Board of Health overstepped its authority when, at the behest of Mayor Michael Bloomberg, it attempted to limit the size of sodas sold at city establishments.

According to the four-judge panel, which came to a unanimous decision, the Board of Health took action that should have been left to the legislature and also found that the rules were “clearly political or economic considerations, rather than health concerns.”

The proposed ban would prevent restaurants, movie theaters, street carts, and corner stores (any business inspected by the board of health) from serving sugar-sweetened drinks in servings larger than 16 fluid ounces. Mayor Bloomberg’s justification was predicated on the fact that obesity causes increased costs to the public health system. The court accurately assessed that the Board of Health was not acting to protect individuals’ health; rather, they were attempting to socially engineer public consumption at large in the hopes that a lot of individuals reducing their consumption of calories would nudge down the overall rate of obesity. Setting aside whether or not Bloomberg’s soda ban would accomplish that goal, the court noted that this kind of social tinkering is not within the Board of Health’s purview.

The judges wrote that while the board had the power to ban "inherently harmful" foodstuffs from being served to the public, sweetened beverages didn't fall into that category. Since soda consumption is not necessarily harmful when done in moderation, it "cannot be classified as a health hazard per se," the court wrote.

Back in March a lower court came to the same conclusion. In the opinion of Supreme Court Justice Milton Tingling, the Board of Health violated the authority of the City Council and that “the loopholes in this rule effectively defeat the stated purpose."

Bloomberg has vowed to appeal again, despite ridicule from the left and the right as well as criticism that his proposal simply will not affect obesity rates as he hopes (I’ve written more on that here and here). Hopefully, as New Yorkers consider who they want to be the next mayor of their city, they will look for someone who is willing to stand up for their rights rather than attempt to control what they put in their mouths.