Bloomberg's Big Gulp Ban Fizzles

As most New Yorkers are aware, Mayor Michael Bloomberg has been fighting to implement a ban on the sale of any cup or bottle of sweetened drinks larger than 16 fluid ounces.  The proposed law is an effort by Bloomberg and New York City to combat the rapid increase of obesity throughout the city, while opponents deride the effort as an encroachment of civil liberties.  On Tuesday, an appeals court upheld a lower court finding that the sugary drink ban was unconstitutional and an overreach in authority by the Mayor and Board of Health.  The appellate judges wrote in a unanimous decision that "Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority".  While the big gulp ban has been found to be unconstitutional, it is important to understand the details of the law and not simply rely on catchy headlines from cable news. 

The Facts: The ban is not a law, rather a regulation passed by New York City's Board of Health and was highly touted by Mayor Michael Bloomberg.  The ban went into effect in March, but litigation from the beverage industry among others brought about a court ordered injunction while the constitutionality of the ban went through the judicial process.  The ban applied to any cup or bottle of sweetened drink larger than 16 fluid ounces BUT there were a significant number of notable exemptions.  The drink ban does not apply to diet-sodas, fruit juices, dairy based drinks, or alcoholic beverages.  The ban also does not apply to grocery or convenience stores. The Board of Health and Mayor Bloomberg said the ban is an effort to combat the out of control obesity epidemic in the city, and the numbers are startling with 60% of New York City adults classified as obese and 40% of NYC school children classified as obese.  Officials and doctors argue, these rapidly rising obesity numbers directly effect all other New Yorkers through rising health care costs and other fees associated with providing care for those individuals.

 

While the obesity numbers are dire, the courts have found that the ban to be unconstitutional because it came from the executive body of the city, a violation of the state principle of separation of powers.  The court found that the Board of Health and Mayor were acting too much like a legislative body through the enactment of sweeping policy change.  They also took issue with the large amount of exemptions saying if it were a legitimate ban it would apply to all public and private enterprises, not only the hand selected ones.  While the drink ban clearly lacks constitutional merit, the court made sure to clarify nothing in the decision was meant to "express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so".   This seems to leave the door open in case the appropriate legislative body took up the issue. 

 

The reality is the Mayor and Board of Health likely overstepped their authority by implementing the sugary drink ban.  The further hurt their cause by allowing numerous loopholes and exemptions, which directly contradict the law.  If a legislative body like the city council took up the issue and implemented a similar ban, they would have a strong claim it is in the best interest of the public based on the rising costs of health care which is being unfairly passed on to other residents.  But the Bloomberg and the Board of Health are part of the executive branch and therefore lack the authority to implement sweeping policy changes, which is the role of the legislature.  I predict the ban in its current form likely will not be allowed by the courts, and agree with the appeals court that the effort is unconstitutional.  As always, please feel free to share your thoughts!