New York City's Soda Law Will Fizzle

The New York State Court of Appeals, the state's top court, heard oral argument yesterday on New York City's "Portion Cap Rule," which seeks to limit the sales of sugary drinks to containers less than or equal to 16 ounces. This particular case has much less meaning than the media attention would appear to signify, and the outcome is not in doubt. The City will lose.

The legal issue is fairly clear. It is not about the City protecting public health, which it can do administratively (without the City Council) for certain emergencies, like quarantines to stem the outbreak of cholera, but cannot do for slow-burning problems like obesity from soda consumption. Cities can no doubt regulate consumption for health reasons, and only the most egregious rules will run afoul of some sort of a dormant commerce clause challenge. But in general, they must do so legislatively. New York City's Charter, while unique, requires it. If this is such an emergency, then limiting soda sizes to 16 ounces won't do the trick, and exempting grocery stores and convenience stores speaks to the non-emergency nature of the problem. So the New York Times is way off in reporting that it is closely watched by cities all over the country, and that the case is interesting. The case will be narrowly decided on the grounds that the Mayoral Administration of Michael Bloomberg, which initiated the Rule, exceeded its powers in enacting this rule without going through the City Council.

This case is a shame in two ways. First, obesity due to soda consumption is significantly higher in communities of color in New York City, most notably African-American and Hispanic communities. It is thus a shame that New York State NAACP president Hazel Dukes came out against the Rule, and the City's Public Advocate, Letitia James, argued against the Rule. Their view: we don't need no stinkin' protection from soda. The Rule infringes our liberty of palate. It is a fact-free, analysis-free, emotional view grounded in ignorance, and exhibiting a stunning disregard for reality. Shame on us for conferring authority on such ignoramuses.

The second shame is the Portion Cap Rule itself. Because Mayor Bloomberg did not want to go through the City Council, he was reduced to this half-baked attempt to do *something* about soda consumption and obesity. A paper I wrote discusses this link, and estimates benefit-cost ratios of at least six to one, and perhaps as high as thirteen to one. Had the former Mayor been able to work with the City Council, he could, without legal controversy, have imposed a small tax on sugary drinks that would have been much more effective, easier to administer, and would truly have been a test case for what cities can do to protect public health. That is a case New York City would have won, and set a precedent for a variety of locally-grown public health measures.