New York City Mayor Michael Bloomberg's large sugary drink ban has been put on hold the day before it was set to take effect.
The mayor announced in June that in an effort to combat obesity, the city would ban the sale of sugary drinks larger than 16 ounces at certain venues, including sodas. The law was an attempt to regulate portion size; consumers wouldn't be banned from getting refills, nor would they be prohibited from buying four 16-ounce drinks in order to quench their thirst for 48 ounces of cola.
Those loopholes are problematic, wrote New York State Supreme Court Justice Milton Tingling in his ruling on Monday, because they "effectively defeat the stated purpose" of the law.
Alexander Capron, a professor of law at USC who specializes in health policy and medical ethics, agrees with that assessment.
"The problem with that particular ban is a practical one, more than whether it has a justification," he said. "There's nothing that prevents [consumers] from buying another drink or getting a refill."
Government and health
But Bloomberg's attempt to get New Yorkers to cut back on sugar-filled soda brings up some interesting questions about the role of government in promoting healthy lifestyles.
"There are a lot of choices the government can make [for us]," said Capron. "Most of them require some showing that the choice that you would make about your own life, if made in the wrong way, would have an adverse effect on someone else."
Take seat belts, for example.
The law that requires drivers and passengers to buckle up is justified, said Capron, because the injuries to people who didn't wear seat belts can require expensive medical care that can "impose a very large economic burden on others."
"The justification for that use of the police power, as it's called, is the effect on others," said Capron.
It's different when it comes to lifestyle.
Bloomberg cites obesity prevention as a reason for banning surgary drinks, but in order to do something like that, "the cost [of the behavior] has to be very substantial and there have to be people who are badly injured in a way that's very preventable," said Capron.
Then what of the $245 billion in medical costs that some experts attributed to diabetes in 2012? Or the disproportionately high obesity rate in South Los Angeles? That's not the same as seat belts, said Capron, because the impact of a single individual is less likely to be traumatic – or expensive – to others than a single auto accident might be.
In other words, it may not be enough to warrant the police power – at least for now.
When depriving liberty is OK
Lawmakers looking to legislate healthy lifestyles, said Capron, should proceed in this order: information and persuasion - and if those fail, coercion.
"The principle is to use the minimal deprivation of liberty that is consistent with achieving the result desired," he said. That includes labeling fast-food menus with calorie counts and fat content.
"It's a way of informing choice and changing behavior to get people to realize the effects of what they're doing," said Capron. "You only get to substantially deprive people of their liberty where you have a very strong claim and where merely giving information isn't enough."
Bloomberg, for his part, said he believed the decision to put the sugary drink ban on hold is wrong, and he's confident he'll win on appeal.