Judge forbids implementing soda ban, Bloomberg vows to appeal
A New York Supreme Court judge has ruled that the city cannot enforce the soda ban that was set to take effect tomorrow.
Judge Milton Tingling ordered that the city is “enjoined and permanently restrained from implementing or enforcing the new regulations,” on the grounds that they are “fraught with arbitrary and capricious consequences.”
Mayor Michael Bloomberg vowed to appeal, saying the city believed the judge’s decision was “an error.”
“There are many, many instances where a lower court decision has gone against us and then been reversed,” Bloomberg said. “We’re confident that today’s decision will ultimately be reversed, too.”
Chris Gindlesperger at the American Beverage Association, one of the co-plaintiffs opposing the city in the lawsuit, said the ruling “provides a sigh of relief to New Yorkers and thousands of small businesses in New York City.”
“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,” Gindlesperger said.
Former Comptroller and 2013 mayoral candidate Bill Thompson was quick to respond as well, calling the soda ban “a cosmetic solution to a complex problem.”
Bloomberg referenced other health initiatives the city has taken on, including banning trans fats and adopting a grading system for restaurants, and also broadly discussed having “tackled” the issue of obesity “by promoting exercise and healthy eating, by supporting green markets and encouraging bodegas to carry fresh fruits and vegetables.”
The mayor, who has been referred to before as “Nanny Bloomberg” for some of his policies, also added, “We have a responsibility as human beings to do something, to save each other, to save the lives of ourselves, our families, our friends, and all of the rest of the people that live on God’s planet.”
Is sugary drink consumption a public health concern?
Some New Yorkers are in favor of the ban: John Crandall, a local chiropractor, praised Bloomberg as “someone who is willing to take a stand on unpopular issues.”
Crandall said that sugary drink consumption is a public concern because of the burden it places on the community.
“Because of your habits, you end up having heart disease and have to be on Medicare or Medicaid, then your health will be a burden on society,” Crandall said.
Judge Tingling wrote in his decision that the “costs to City, State and Federal governments are alarming.”
“Each person diagnosed with diabetes is expected to incur an extra $6,649 per years in medical costs,” Fingling wrote. “Obese individuals spend $1,443 more on health needs than normal weight individuals. The number of those individuals receiving Medicaid/Medicare means tax payer dollars being pour into a preventable disease.”
The judge estimated that “obesity and overweight are responsible for approximately $4 billion in direct medical costs.”
However, the judge ultimately ruled against the city on the grounds that the regulation is “unconstitutional and in violation of the separation of powers doctrine,” going so far as to say it “eviscerates” separation of powers.
“We believe that he interpreted the precedents completely wrong,” said Michael Cardozo, a lawyer for the city, noting that the decision is based on a question of the legal authority of the Board of Health, not the value of the ban itself.
City points to “new data”
This morning, the city released “new data” they said highlighted the “strong relationship between sugary drink consumption and obesity.”
The data, from a Community Health telephone survey of around 9,000 adults, breaks down obesity rates by neighborhood, and found that nine out of the 10 neighborhoods with the highest rate of obesity were also the neighborhoods with the highest rate of daily “sugary drink consumption,” with sugary drinks including “sugar sweetened soda, iced tea, sports drinks and fruit punch.”
J. Justin Wilson, a senior research analysis at the Center for Consumer Freedom criticized the presentation of the data as a “study,” as it’s not peer-reviewed and does not seem to have accounted for any controls — potentially interfering factors such as physical activity or food consumption.
“It’s a survey of convenience, not an academic study,” Wilson said. “Correlation does not equal causation; this gives no clear picture of what these people are eating, what they’re doing with their lives.”
According to data from the Furman Center for Real Estate and Urban Policy at NYU Law School, several of the top 10 most obese neighborhoods in the city’s study are also the city’s neighborhoods with the lowest median income: Fordham, for example, is the third most impoverished neighborhood, with a median income of $26,382, and East New York is the ninth, with $32,463.
Various Bronx neighborhoods tie for first and second place, particularly in the South Bronx and Northeastern Bronx, the second and tenth most obese areas, according to the Bloomberg study.
A WNYC analysis of 2010 census data found that the annual median income for 229 households in the South Bronx — the second most obese area according to the Bloomberg study — is $8,694. The federal income poverty level is under $18,000 for a family of three.
The city has denied that the soda ban disproportionately affects poorer communities, as organizations like the NAACP New York State Conference and the Hispanic Federation have alleged in amicus briefs filed for the lawsuit.
NY NAACP President Hazel Dukes said that “a real solution would address issues like access to healthier foods, particularly in the food deserts that exist in low-income neighborhoods.”
Specially ordered measuring cups
An earlier report from the Daily News said that the Department of Health would be using “specially ordered” measuring cups to enforce the soda ban.
The Department of Health did not respond when asked how much money was spent on the special measuring cups.
Follow Danielle Tcholakian on Twitter @danielleiat
The government requires taxpayers to subsidize other people’s health insurance, and requires private group plans to charge the same premiums regardless of health habits. Then it cites these intrusions to justify another intrusion: a ban on large sugary drinks (“the resulting obesity and diabetes will be a burden on the system”). Your habits are the government’s business because the consequences are the government’s business.
Wouldn’t it be easier to simply not require taxpayers to subsidize other people’s healthcare, and to allow public and private health insurers to underwrite for risk? Eliminate Medicaid, allow Medicare and private health insurers to charge higher premiums based on habits such as weight, smoking, drug use, alcoholism and driving record – let the individual choose, and then be responsible for the consequences.
And please – the notion of “food deserts” is ridiculous. The subway is $2.50. Costco is on 116th. Bananas cost 25 cents each at the fruit stand. There is healthy food everywhere – some people choose to eat something else. As long as they bear the consequences, the choice should be theirs.