Skip to main content

Banning large sodas is legal and smart

By Lawrence O. Gostin, Special to CNN
March 13, 2013 -- Updated 1652 GMT (0052 HKT)
STORY HIGHLIGHTS
  • A New York state judge blocks the city's plan to limit the size of sugary drinks
  • Lawrence Gostin: A portion limit is not an attack on freedom; people can still buy soda
  • He says like Big Tobacco, industry has spent millions to fight this effort to combat obesity
  • Gostin: The Board of Health has the power to regulate sugary drinks; portion control can work

Editor's note: Lawrence O. Gostin is professor and director of the O'Neill Institute for National and Global Health Law at Georgetown University. He is also director of the World Health Organization's Center on Public Health Law and Human Rights.

(CNN) -- A state trial judge on Monday blocked New York City's plan for a maximum 16 ounce size for a high-sugar beverage. The ban would have included sodas, energy drinks, fruit drinks and sweetened teas. But it would have excluded alcoholic beverages and drinks that are more than 50% milk, such as lattes. The ban would have applied to restaurants, movie theaters, stadiums and mobile food carts. But it would not have applied to supermarkets and convenience stores, such as 7-Eleven.

Mayor Michael Bloomberg's proposal was met with fierce opposition by the industry and public outrage at the loss of "liberty," the so-called "nanny state" run amok. Beyond all the hype, the industry's vociferous arguments, now adopted by a trial court, are badly flawed.

In fact, the Board of Health has the power, indeed the responsibility, to regulate sugary drinks for the sake of city residents, particularly the poor.

News: Mississippi governor reviews 'Anti-Bloomberg' bill

Lawrence O. Gostin
Lawrence O. Gostin

Would the ban work?

Nearly six out of 10 New York City residents are overweight or obese, as are nearly four out of 10 schoolchildren. This cannot be acceptable to our society, knowing that obesity is such a powerful risk factor for diabetes, cancer and heart disease. No one would disagree that government should act, but how? There is no single solution, but many ideas that would work in combination. One of those solutions is to control portion size and sugar consumption. Why?

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



First, the ever-expanding portions (think "supersized") are one of the major causes of obesity. When portion sizes are smaller, individuals eat less but feel full. This works, even if a person can take an additional portion. (Most won't because they are satiated, and it at least makes them think about what they are consuming.) Second, sugar is high in calories, promotes fat storage in the body and is addictive, so people want more. The so-called "war on sugar" is not a culture war, it is a public health imperative backed by science.

Opposing view: 'Anti-Bloomberg' bill stops overregulation

So, there is good reason to believe New York's portion control would work. But why does the city have to prove that it works beyond any doubt? Those who cry "nanny state" in response to almost any modern public health measure (think food, alcohol, firearms, distracted driving) demand a standard of proof that lawmakers don't have to meet in any other field.

When a law is passed to increase jobs, spur the economy or subsidize a corporate sector (oil, for example), we don't insist that lawmakers prove it works. At least public health officials rely on science and try to craft rules that have a chance of working—if not in isolation, then in combination with other obesity control measures such as food labeling, calorie disclosures, trans fat restrictions and access to affordable fruits and vegetables in schools and poor neighborhoods.

Is the ban consistent?

The industry stoked the fires of public discontent with its campaign against the "inconsistencies" in the soda ban. Why doesn't the ban apply to milky drinks, why can 7-Eleven sell large sugary drinks, and why not ban refills? Justice Milton Tingling Jr. bought both industry arguments: It won't work and it is inconsistent. He went so far as to call the ban "fraught with arbitrary and capricious consequences" and filled with loopholes. Again, we find a double standard.

Conan: Soda ban overturned

Bloomberg did what every other politician does: balance public health and safety with realpolitik. Consider one of the judge's major arguments: balancing public health and economic considerations is "impermissible." This judicial reasoning makes no sense. If policy makers could not balance economic consequences, virtually every law in America would be flawed. There is another huge problem with this argument. It assumes that unless public health does everything, it can do nothing. The whole art of politics is compromise. The mayor gets a lot of what he seeks to fight obesity, but not everything.

Does the Board of Health have the power?

Admittedly, the soda ban would have been better coming from the city's elected legislature, the City Council. But the Board of Health has authority to act in cases where there is an imminent threat to health. Doesn't the epidemic of obesity count as an imminent threat, with its devastating impact on health, quality of life and mortality? In any event, the Board of Health has authority over the food supply and chronic disease, which is exactly what it has used in this case.

Members of the Board of Health, moreover, are experts in public health, entitled to a degree of deference. The fact that the proposal originated in the mayor's office does not diminish the board's authority and duty to protect the public's health. Many health proposals arise from the executive branch, notably the Affordable Care Act.

Should industry have an outsized influence on public health policy?

The fingerprints of the food and restaurant industries, with their clear economic conflicts of interest, are all over the public and judicial campaign to block the soda ban. Industry undertook a multimillion-dollar campaign, flying banners over the city and plastering ads over the subways. They immediately filed suit and hired the most elite law firms.

Rather than recognize the public health effects of large sugary drinks, they chose to fight, reminiscent of Big Tobacco. What is worse, the public (and now a judge) fell for the industry's manipulations. Most New Yorkers oppose the portion ban, while politicians in other states are scrambling to show their disapproval. Mississippi is about to pass a law forbidding portion control. Imagine that in a state with the highest obesity rate in America!

We are used to fierce lobbying for personal gain in America, but that doesn't mean we should be duped by industry propaganda. Is a portion limit really such an assault on freedom? It doesn't stop anyone from buying soda. If consumers really want, they can buy several smaller drinks. It doesn't stop companies from giving refills.

There is really no great burden posed on individuals, only a little nudge in the right direction. At the same time, it could make meaningful changes in the drinking habits of New Yorkers. Why is the industry fighting this so fiercely? Because when it is shown to be successful in New York, it will be emulated in major cities in America and worldwide. Isn't that exactly what we need to stem the tide of obesity?

Follow @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Lawrence O. Gostin.

ADVERTISEMENT
Part of complete coverage on
December 27, 2014 -- Updated 0127 GMT (0927 HKT)
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
December 26, 2014 -- Updated 1617 GMT (0017 HKT)
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
December 26, 2014 -- Updated 1319 GMT (2119 HKT)
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
December 26, 2014 -- Updated 1505 GMT (2305 HKT)
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
December 26, 2014 -- Updated 1303 GMT (2103 HKT)
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
December 27, 2014 -- Updated 2327 GMT (0727 HKT)
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
December 25, 2014 -- Updated 0633 GMT (1433 HKT)
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
December 23, 2014 -- Updated 2312 GMT (0712 HKT)
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
December 24, 2014 -- Updated 1336 GMT (2136 HKT)
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
December 24, 2014 -- Updated 1914 GMT (0314 HKT)
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
December 23, 2014 -- Updated 2027 GMT (0427 HKT)
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
December 24, 2014 -- Updated 0335 GMT (1135 HKT)
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
December 23, 2014 -- Updated 1257 GMT (2057 HKT)
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
December 23, 2014 -- Updated 0429 GMT (1229 HKT)
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
December 23, 2014 -- Updated 2115 GMT (0515 HKT)
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
December 23, 2014 -- Updated 1811 GMT (0211 HKT)
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
December 22, 2014 -- Updated 1808 GMT (0208 HKT)
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
December 20, 2014 -- Updated 1853 GMT (0253 HKT)
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
December 20, 2014 -- Updated 2019 GMT (0419 HKT)
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
December 22, 2014 -- Updated 2239 GMT (0639 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT