Today another New York state court upheld an earlier decision in March that invalidated outgoing Mayor Mike Bloomberg's much-maligned "soda ban" which restricts many establishments in the Big Apple from selling soda cups larger than 16 ounces in capacity. As the media report on the court ruling, watch for a) the media to paint the ruling as a "blow" to an "ambitious," well-meaning effort by Bloomberg to save the city from corpulence and b) the ruling as a victory for Big Soda, even though the litigants in the case happen to be the New York Statewide Coalition of Hispanic Chambers of Commerce.
For two examples of this media narrative, I submit for your consideration two wildly different publications, Politico and, sadly, the Wall Street Journal. First Politico. Here's how Kyle Cheney opened his July 30 post, "Appeals court cans N.Y.C. soda ban" (emphasis mine):
New York City Mayor Michael Bloomberg’s sugary drinks ban fell flat Tuesday, when a state appeals court ruled it an unconstitutional abuse of the city’s power.
It’s another blow to the ambitious effort to crack down on obesity, although Bloomberg quickly promised to appeal, calling the ruling a “temporary setback.”
Bloomberg proposed the policy — which would block restaurants, delis, fast food chains and movie theaters from selling sugary drinks larger than 16 ounces — last year, arguing that it would help fight climbing obesity rates and bring health costs down. The City Council balked at the plan, but the city Board of Health adopted the proposal anyway.
The state Supreme Court’s appellate division determined in a unanimous ruling that Bloomberg’s effort exceeded the city’s authority because it was enacted without legislative approval. The court also concluded that drinking sugary soda is not inherently dangerous, if done in moderation, and therefore the Board of Health’s decision to restrict it was out of bounds.
“Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12, more than 2,000 New Yorkers have died from the effects of diabetes,” Bloomberg said in a statement. “Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes – both of which are disproportionately linked to sugary drink consumption.”
Bloomberg’s effort stoked a national debate about the role of government in dictating health choices. Bloomberg contends that the ban would force consumers to make an active choice about purchasing sugary beverages in large quantities.
Nowhere in his 10-paragraph story did Cheney quote an everyday Joe or Jane in New York pleased with the ruling and displeased with their mayor's nanny-state efforts to limit their dining choices. Likewise Cheney failed to find anyone to criticize the soda ban as poor public policy masquerading as science. After all, plenty of equally high-calorie drinks were left untouched by the soda ban, such as milk-based sugary drinks like the kind you might buy at Starbucks or other premium coffee chains.
As for the Wall Street Journal, Metropolis blog contributor Michael Howard Saul gave readers the impression this was primarily a win for the nation's large soda companies while being a "blow" to Bloomberg's valiant "public health initiatives":
A mid-level state appellate court on Tuesday unanimously affirmed a state judge’s decision to block New York City from banning the sale of large sugary drinks in restaurants and other venues, another blow to Mayor Michael Bloomberg who has made public health initiatives a hallmark of his tenure at City Hall.
“The Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the ‘Portion Cap Rule’ to curtail the consumption of soda drinks,” the justices of the First Department of the Appellate Division wrote in their opinion. “It therefore violated the state principle of separation of powers.”
Last year, Mr. Bloomberg proposed prohibiting restaurants, mobile food carts, delis and concessions at movie theaters, stadiums or arenas from selling sugary drinks in cups or containers larger than 16 ounces. The city’s Board of Health, a panel whose members were each appointed by the mayor, approved the ban in September.
In March, just as the ban was scheduled to take effect, New York state Supreme Court Judge Milton Tingling determined that Mr. Bloomberg exceeded his authority by sidestepping the city Council and placing the issue before the Board of Health. The ban, Judge Tingling wrote, would “not only violate the separation of powers doctrine, it would eviscerate it.”
In a statement, Mr. Bloomberg described the appellate division’s affirmation of Judge Tingling’s ruling a “temporary setback.” The city plans to appeal the decision, the mayor said.
“Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12th, more than 2,000 New Yorkers have died from the effects of diabetes,” Mr. Bloomberg said. “Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes – both of which are disproportionately linked to sugary drink consumption.”
Christopher Gindlesperger, a spokesman for the American Beverage Association, which helped spearhead the fight against the ban, said the group is pleased that the lower court’s decision was upheld.
“With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City,” Mr. Gindlesperger said.
Like Politico's Cheney, Saul failed to find everyday New Yorkers who would cheer the decision and tell Hizzoner the mayor to fuhgeddaboutit when it comes to regulating their soda consumption. And you'll also notice that Saul failed to turn to the actual litigants in the case, the New York Statewide Coalition of Hispanic Chambers of Commerce, for comment.
[To read the July 30 unanimous appellate court ruling in New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, click here.]