Neither I nor anyone else I've read on last week's judicial stay of New York City's "Big Gulp Ban" is a lawyer. (We call it the Big Gulp Ban, though in fact it famously would not have banned 7-Eleven's massive drinks.) But I doubt that our Board of Health was being "capricious" or "arbitrary" — those were the words of the ruling justice, Milton A. Tingling — when it decided last September, by a vote of 8 to 0 (you read that right), to forbid the sale, where it could, of super-size sugary drinks. (From this point on I'll just call them "soda.")
Nor do the proposers of the ban, Mayor Bloomberg and the health commissioner, Thomas Farley, seem like capricious guys to me. In fact, Farley is an intensely serious man who, as I wrote last year, believed the ban to be the best option available for the city to move forward in its struggle against obesity, metabolic syndrome and associated diseases, which kill thousands — thousands – of New Yorkers each year.
And, by the way, hundreds of thousands of Americans. One could argue that after tobacco, sodas might just be the biggest killers via preventable disease in the country. Yet just as 32 ounces seems to be the new normal, so does death by preventable disease. Think about what the word "preventable" means for a moment.
I would've been proud had New York been the first city in the country to do something novel and concrete about this issue, just as I would be proud if the United States were the first country in the world to take on Big Sugar. It can still happen, at least in our town: Farley says that the Board of Health lawyers, who took a long and hard look at the proposal before approving it, are "optimistic" that Tingling's ruling will be overturned on appeal.
Even if it isn't, every time a move that attempts to limit the sale of soda comes before a legislative, electoral or judicial body, the publicity is tremendous, in part thanks to the huge amount of money the beverage industry is forced to spend defending its turf. And it's encouraging how positive the local press has been about the ban (check out, especially, this editorial in The New York Daily News).[1]
We've at least gotten to the point, as Farley said to me this past weekend, where "no one is arguing that it's good for you to have a 32-ounce soda." The argument that preventing us from buying 32 ounces of liquid candy in one container somehow restricts our "liberties" can be seriously made only by those who would allow marketing of tobacco to children.
Research shows that we'll consume pretty much whatever quantity we're served, and be satisfied with it. If 16 ounces of soda isn't enough for you, the ban would not, of course, have prohibited your purchase of two 16-ounce containers; the idea was to make you think twice before doing so.
What, exactly, makes that capricious? The Board of Health was operating entirely within its mission; it could not apply the ban in every place where soda is sold because it doesn't have jurisdiction everywhere. But it does have jurisdiction over more than 20,000 restaurants and 5,000 mobile food vendors.
"Just because it doesn't apply everywhere doesn't mean it isn't worth doing," says Farley. (Note that the board's ban on trans-fats — a fantastic public health initiative — could also be applied only in limited fashion.) If the ban had actually covered Big Gulps (in fact there are only about 100 7-Elevens in New York City), would it have then become un-capricious and un-arbitrary?
Tingling seems to believe that the board is limited to acting on infectious diseases, which is wrong. The board prohibited the use of lead in paint, preventing brain damage in tens or hundreds of thousands of our children, and it established the need for window guards in apartments where toddlers live. Its job is to protect the health of the city's residents, more than half of whom are overweight.
Although Bloomberg got most of the publicity around this proposal, it was undoubtedly Farley's brainchild, and Farley is, as I said, a serious public health professional, as are the members of the Board of Health. You might believe that Bloomberg is an autocrat, but if and when this ruling is overturned, the soda ban will go into effect regardless of who is mayor.
And it would stay that way, because it would not be mayor-dependent but Board of Health-dependent, and board members serve six-year terms. You could elect Pepsi C.E.O. Indra Nooyi mayor and she'd still have to load the board with sympathetic medical people — if she could find any — before banning the ban.
On a national level, we have policies that prop up sugar prices. (Yes: sugar could be even cheaper!) We have a Food and Drug Administration and a Surgeon General's office that virtually ignore the roots of the obesity crisis. We have a White House representative — Michelle Obama — and a Department of Agriculture (the best of the lot, not that that's saying much) that pussyfoot around the issue, talking about "making better choices" and getting plenty of exercise.
Not that there's anything wrong with that, except that the conflict avoidance by these individuals and agencies, their unwillingness to take on Big Sugar, is deadly. We eat, on average, teaspoons of sugar that are added to food or drink (this includes high-fructose corn syrup, about the same thing); those are worth something like 350 calories. All other things being equal (most of us would have to run more than three miles to burn that off), you'd gain a pound every 10 days at that rate, or more than 35 pounds in a year. And all other things are not equal: there's plenty of evidence that sugar calories are worse for you than calories from other foods.
The beverage industry's decision to grow default soda sizes (a Coke was seven ounces when I was a kid, and that seemed plenty) was a cynical profit grab that is a direct and leading cause of obesity, metabolic syndrome and therefore illness, sometimes fatal. The soda ban would have increased choices in many movie theaters, where 32 ounces is the smallest size you can buy. If this is about freedom, it's about the freedom of marketers to sell vectors of disease; we should all be in favor of restricting that freedom.
[1] More interesting links, from NBC; from Buzzfeed, comparing soda and cigarettes; from New York magazine, suggesting that we "occupy" sugar; before the bad news about the ban, from Marion Nestle; another piece in the Daily News, suggesting that the ban didn't go far enough (which is true, but one has to start somewhere); and finally this piece in Gawker noting that the sadly and largely irrelevant N.A.A.C.P. weighed in on the side of the beverage industry.
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