New York Judges Strike a Blow to Public Health



Last week, New York’s State Court of Appeals struck down a final plea by the NYC Board of Health to allow limitations on sugary beverage serving size. As you may recall, in May 2012, then mayor Michael Bloomberg led the city’s health board to ban the sale of large sugary drinks (over 16 fluid ounces) in food establishments such as restaurants, movie theaters, delis, food trucks, and street carts.

The beverage industry, understanding the threat of New York’s actions, moved swiftly to repeal the ban, working on both public sentiment (through ads) and legal channels. In March 2013, New York’s Supreme Court struck it down as no less than “arbitrary and capricious”. The city appealed, but was unable to overturn the original ruling.

There is a silver lining though. The judgement was not unanimous, with 4 judges against the appeal, and 2 judges dissenting:

In a blistering dissent of the opinion, Judge Susan P. Read wrote that the ruling ignored decades of precedent in which the board was given broad purview to address public health matters, such as regulating the city’s water supply and banning the use of lead paint in homes.

The opinion, Judge Read wrote, “misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century.” Read more from The New York Times…

Thankfully, Judge Read and another colleague understand the context of the soda limitations. There is a clear and present danger to Americans’ health, and its the junk food industry. Armed with billions in cash to fund ad campaigns, PR, lobbying firms, and expensive lawyers, these companies will paint any government activity aimed at leveling the nutrition playing field as “communism”, “nanny state”, or “unconstitutional”. Meanwhile, sugary drinks and junk foods are costing each one us thousands of extra dollars every year in health care costs.

The beverage industry’s massive profits come through the externalization of the real cost of obesity and diabetes to the nation. Even if you don’t drink a single sip of cola, your taxes and healthcare premiums are paying for Coca Cola’s shareholder dividends. Does that sound fair?

It’s interesting to note that current mayor of NYC, Bill de Blasio, who agreed with his predecessor on almost nothing, is actually in favor of the soda limitation. Let’s hope New York City will continue to be creative in its public health policy, to the benefit of its denizens, and as an example to the rest of the country.

  • AdoptiveMum2Seven

    I don’t drink soda around the house, and I usually drink water when I eat out. When I do get a soda, I sure do enjoy a 44 Root Beer from Sonic.

    When you get a soda, it seems more than half the cup is ice. If they limit it to 16 ounces, wouldn’t it be less than 8 ounces of actual soda?

  • Stardust

    The government can only do but so much; “you can lead a horse to water, but you can’t make him drink. ” It all comes down to the choices that people make whether it be good or bad. Americans need to take responsibility for their health and choose the foods that will nourish them and help them live better and longer lives. The government shouldn’t have to play “mom”, telling Americans to eat their vegetables. It’s ridiculous how many people don’t know how to properly eat to take care of themselves. Well, long story short, people know that they’re eating junk food but they think nothing of it and assume that a candy bar is as healthy as a piece of fruit.

    • Bob

      Well said! Thank you!

    • blue ice

      I totally agree. You can’t regulate people into health. Responsibility for one’s self is a dirty phrase these days

    • jadegreen_eyz

      And do you not find it ironic that since the introduction of “sugar-free,” “low-fat”, etc foods that the rate of obesity is climbing, Stardust? I was born in the 50′s when they didn’t exist. If you were to view old photos of people from my era, you will rarely see obese people, the vast majority were fit.

      • Watergirl

        But hundreds of tv channels and the internet didn’t exist either. People in general moved around more. At least they had to go outside to get the newspaper. Now they can get the news without leaving their bed. So it’s probably a combination of the foods and inactivity, not just the food alone.

        • jadegreen_eyz

          Yes, Watergirl, we were more active (schools actually had PE classes then). Also, I think there are people buying the lower calorie products that somehow convince themselves that since the item has fewer calories, they can consume a bigger portion which in all probability causes them to surpass the caloric content of the full-fat/sugar products. We humans have a funny way of justifying things that way. :)

          • Stardust

            Exactly. I sometimes find myself doing that lol….but I never go completely overboard, I usually do it with fruit!

      • Watergirl

        But hundreds of tv channels and the internet didn’t exist either. People in general moved around more. At least they had to go outside to get the newspaper. Now they can get the news without leaving their bed. So it’s probably a combination of the foods and inactivity, not just the food alone.

      • unnecessary1

        If, in the 60′s, companies tried to sell you on eating sticks of margarine like bananas, you wouldn’t have done it, right? I mean, you would figure out that it couldn’t possibly be good for you. You wouldn’t need the government to ban margarine in any size bigger than a pat package, right?

        I agree with you that what ppl ingest causes a myriad of problems from health issues, to neurological issues, to obesity. I don’t agree, however, that we need the government to dictate what we can buy, consume and feed our families. That is not, nor should it become the governments role.

    • SuperMom101

      Dear Stardust,

      No “choice” here. My tax dollars are subsidizing the very food and beverage industries that are making America and her children fat, sick and malnourished. (Not to mention the health care costs to treat those families that are “choosing” a 24 oz candy in a cup.)

      I agreed with you 100% until I had cancer 12 years ago and discovered America and her fake, highly processed, industrial food supply.

      Don’t you find it strange that America (and her children) have never been fatter or sicker and we can’t seem to figure out why? Meanwhile we’re told everything is fine with our highly addictive food supply and it’s all because we’re making poor “choices” and not exercising.

      Wishing you best health always,

  • Matt

    I thought Fooducate’s mission was to educate people about nutrition so they could make better decisions on their own rather than having to rely upon their government to make those decisions for them? I promise I have nothing to do with the beverage industry, I just prefer to decide what I eat and drink for myself. Now if you’ll excuse me, I’m going to go eat a food pyramid…

  • Good Job

    I applaud the judges. Personal freedom only exist if we retain those rights. It is not the government who should decide what we eat, drink, or wear. When this happens we no longer say we are free. Communism was that kind of government.

    • Jerry Henderson

      government At any level should not prohibit our right to choose what to eat or drink. the sooner we stop this move of one group determining what is right for everyone else the better. Time to get back to people taking personal responsibility for their choices. IfFooducate wants to advance political views I will uninstall the app.

      • Fooducate

        This has nothing to do with politics.

        • Matt

          Yes it is, it’s about the role of government – the essence of any political discussion.

    • Fooducate

      Public health policy is not communism. Seat belt laws are not nanny state politics. They save lives.

      Public health policy is not government deciding what we should eat or drink. It’s about making the default choice a healthier one: You can still buy 2 16-oz drinks if you want. But you’ll stop to think about it for a minute and chances are you’ll decide the second cup of 16 ounces is not necessary.

      • Rgoo242

        You are missing the potential for a dangerous slope. The road to hell is paved with good intentions.

        • Fooducate

          We’re already down a dangerous slope – healthcare costs are spiraling out of control, 3 million new diabetics in just 3 years, childhood obesity rates at record highs.
          That is much more concerning than reigning in the sugar water industry.

  • Trisha

    16oz? Uh oh what will starbucks do… Venti cold drinks are 26oz haha! not even to mention the Trenta size..!

  • Fooducate

    To all the haters, sorry to be unpopular, but part of our mission is to educate you on how industry manipulates the public to think it has freedom to choose when in fact it doesn’t. Ads work. Financial incentive to super-size work. Bogus health claims work.

    Public health policy is not communism nor does it limit people’s choice. It helps make the default choice a healthy one. Look at all recent behavioral economic studies and you will realize that “free choice” is in many times a fallacy. When your choice is between a 32 oz Coke or a 32 oz Pepsi, that’s not Freedom.

    This is not about politics, it’s about preventing the next 10 million Americans from getting diabetes (we’re at 29 million, up 3 million in the last 5 years). Please stop invoking empty slogans about your liberties and realize that greedy corporations have taken much more freedom from you than any soda tax or size limit ever will.

    • H2O

      So true !! I ! don’t drink the poison ban it tax . I will not give the soda companies one penny of mine.. They don’t care about anything but profits

      • H2O

        Opps ..Tax it

      • stardust

        I’m with ya!

      • AdoptiveMum2Seven

        “They don’t care about anything but profits…”

        Isn’t that (most of) the point of going into business and offering product for sale?? It’s all about the bottom line!

        • H2O

          Yes it is but when a company adds things like high fructose, Carmel color to the stuff they are selling and want you to drink it up.. They don’t care about their consumers health….Don’t try to kill me to make profit

    • Max_Freedom

      It is appreciated. You are doing a great job.

    • msmbias

      Beginning your blog by addressing all those that disagree w/ this as’haters’ indicates your bias for government control… Which matches the tone of the article. It’s rather disingenuous to claim that a choice between a 32 ounce Pepsi & a 32 ounce Coke is not freedom when the law is outlawing a 32 ounce drink size. You also seem to be oblivious to the fact that people will simply buy 2 16 ounce drinks… So the net effect will just be more sales taxes…& more paper & plastic waste. I’m sure NYC government will then charge higher taxes to compensate for the additional cleanup.

      • Fooducate

        People won’t buy 2 16 oz colas: they will have to think about for a second, and when they do, most won’t order the second one. The default choice will have shifted from bad to slightly less bad. That’s the beauty of sound public health policy.

        • Stardust

          Wait, will people still be allowed to buy a 32 oz water? Because if not, that just ridiculous! It’s water lol……

          • Stardust


        • msmbias

          To be honest, I think that is quite a faulty assumption… & restricting a person’s choice of a drink size is hardly ‘a sound public policy’.

        • Stef

          Completely agree. The reason theres so much disease and depression is because americans hydrate on poison and indulge in fake, carcinogenic food! If I was in control of this country, I’d tear down all the sick industries and make people farm their own food and shit. Get closer to nature and our natural state, the way the universe intended us to be. I refuse to drink soda.

          • H2O

            So do I .. I boycott sodas..I can’t see paying them to make me fat & sick.

          • H2O

            You got my vote

    • lauren

      I choose to drink water wherever I go. Corporations have taken no freedom from me whatsover. That doesnt even make any sense.

      • SuperMom101

        Dear Lauren,

        You can’t “choose” water in a school lunch line but you can choose chocolate candy in a carton. Wonder what industry got water banned? (Our daughter only drinks water and “had to choice” a cow’s milk beverage and would throw it away.)

        p.s. Check your water labels – my niece pointed out that many of the waters are now “enhanced” and she was told not to drink it when lost 70 lbs.

        Best health always,

        • lauren

          I’m not sure where your daughter goes to school, but where i used to go, ofcourse we had the option to choose water! And i am talking about plain old water. Not flavored or vitamin. Just plain natural water.

          • SuperMom101

            Thanks for your reply. Water can’t be offered as a beverage choice in the public school lunch line or on the menu choices at elementary schools. (Plain natural water is sold separately but you have to pay extra.) Our school district won’t be reimbursed by the federal government’s school lunch program if water is offered with the lunch. The reason: water has no nutritional value.*

            (Now, I wonder what lobby group had water banned and chocolate candy in a carton on the menu?) Sorry, couldn’t resist.

            Does your child attend a private school? We live in a fairly affluent community and still have families that require subsidized school lunches so our system definitely participates in the federal programs.

            *Our school food director shared this with me when our children were in elementary school and sadly it hasn’t changed. Our daughter has always preferred water. She would have to “choose” one of the cow’s milk products and throw it away. She would tell me how wasteful she felt it was to take something you don’t want and have to then throw it away. She’s since graduated high school.

            Just walked past a big MILK poster in the middle school the other night and the athletes with milk mustaches in elementary school. It really is subliminal advertising at its worse and no one to stick up for the benefits of plain ol’ natural water.

            Our children play a lot of sports and not once have they run off a court or field and asked for a milk bottle. Wait, maybe I just gave the industry a marketing idea.

            Thanks for reading.

            Best regards.

          • Stardust

            I know, right! How hard would it be to offer those mini bottles of water instead of milk? I always pack my own lunch though….

    • Sarah

      Calling people who disagree with you ‘haters’ is an immature move. It makes you come off as unprofessional and ignorant. Someone disagreeing is not a hater. People have the right to give an opinion against you without you stepping to teenage insults.

      • Stardust

        I know you’re trying to make a point and all, but I find “teenage insults” a little offensive, considering that I’m 15….

    • 4theluv

      I certainly don’t disagree that advertising plays a role in choices, but so does education and personal responsibility. I disagree vehemently with limitations on serving sizes, be it cola, pasta or cigarettes. (Should we limit cigarette packs to 10? Based on this as an example, we should limit their purchase to one or less per day. ) Why 16oz sizes as the max? In my mom’s day coke came in 8oz bottles. Why not back to that? Personally, I only drink Coke Zero but am so concerned about the carbonation I cut it with Jack Daniels ;)

      Consumer education and knowledge of risks people take while consuming any product preserves freedom and permits choices. In the blog post after this reference was made between the nutrition panel choices of coke and orange juice and how most choose the “correct choice”. I’ll go out on a limb and say the right choice is presumed to be orange juice, even though, drop for drop, it has more sugar than fully loaded coke. It just ain’t fizzy.

    • SuperMom101

      Thank you Fooducate for being the voice of reason.

    • Marla Blaseg McGeorge

      Calling us “haters” not only won’t convince people to do things your way, but it shows you don’t have a good argument and are trying to bully people into doing it your way.

  • Morebaconplease

    Serving size is not the issue. I know on the rare occasion that I buy a frappucino or a slurpee that it is NOT a
    Healthy Choice and ordering a smaller size isn’t going to make it healthier.

    The issue in this instance is the greedy Western attitude that more and bigger and cheaper is better.

  • H2O

    Yes we need help people are killing themselves . Children and babies are drinking it I don’t care what adults put in their mouths but to have children drinking this poison getting type 2 diabetes. Having it pushed on them from commercials, supersizing we need to stop.if there’s a limit people won’t over consume.. Just think what a great idea it is for children to wear helmets on their bike and skateboards how many brain injuries have we avoided ??? Maybe even deaths..

    • Jerry Henderson

      You really think a small child can drink a full big gulp.? That’s what is in question here. Anyway , ever hear of free refill? Political grandstanding!. Determining what is best for someone else’s child is a very slippery slope. Ex. What happened o the girl in Mass.

      • H2O

        I’m surprised at what children are eating now a days . I don’t think any child wants to be obse or a type 2 diabetic but it’s happening. It’s a man made and it can be reversed .children imitate their parents so if their parents are drinking big glups so are they…If makes the fat and sick drink a little less or takes it from being the norm, I’m all for it instead try drinking 32 oz of water.

  • blue ice

    It is not the government’s responsibility to decide what we eat or drink. It is personal responsibility that decides that. Be responsible!

  • SuperMom101

    Dear Posters who think this is about “choices”,

    Why does our daughter “have to choose” a cow’s milk beverage (including chocolate candy in a carton) but plain ol’ water is ban in the school cafeteria lunch line? Who banned water? Answer: Your school district won’t be reimbursed if water is offered as a beverage “choice” because water has no nutritional value. (She’d throw it away and sadly she’s not alone – talk about waste and government/industry subsidies.)

    At an event for international cliff diving – way cool btw – that was sponsored by a candy in a can company – they announced that a portion of the day’s proceeds would go to the American Diabetes Foundation. Huh? At first my husband and I thought it was a joke. Nope! Kids walking around with caffeine candy in a can.

    I too was duped until I had cancer 12 years ago and began looking in to America’s diseases of affluence: diabetes, heart disease, cancer . . .

    Why are “candy in a carton” vending machines in school cafeterias? On billboards supporting athletics? Why is sugar water disguised as “Athletic drinks” served in sports snack shacks, etc. etc.

    Does anyone else find it strange that America (and her children) have never been fatter or sicker and we can’t seem to figure out why? Meanwhile, we are told everything is fine with our highly processed, genetically engineered, chemically designed, artificially flavored and sweetened, factory farmed, “food choices” .

    Thank you Fooducate for always offering a bit of “Common Sense” when “Common sense is not so common.” – Voltaire

    p.s. The Movie: FedUp offers insight in to the “choice” propaganda as well.

    Best health to all,