Skip to main content

Banning large sodas is legal and smart

By Lawrence O. Gostin, Special to CNN
updated 12:52 PM EDT, Wed March 13, 2013
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
updated 6:47 PM EDT, Tue April 22, 2014
Q & A with artist Rachel Sussman on her new book of photographs, "The Oldest Living Things in the World."
updated 3:58 PM EDT, Tue April 22, 2014
Martin Blaser says the overuse of antibiotics threatens to deplete our bodies of "good" microbes, leaving us vulnerable to an unstoppable plague--an "antibiotic winter"
updated 1:37 PM EDT, Tue April 22, 2014
John Sutter asks: Is it possible to eat meat in modern-day America and consider yourself an environmentalist without being a hypocrite?
updated 11:38 AM EDT, Tue April 22, 2014
Sally Kohn notes that Meb Keflezighi rightly was called an American after he won the Boston Marathon, but his status in the U.S. once was questioned
updated 8:56 AM EDT, Tue April 22, 2014
Denis Hayes and Scott Denman say on this Earth Day, the dawn of the Solar Age is already upon us and the Atomic Age of nuclear power is in decline
updated 4:36 PM EDT, Mon April 21, 2014
Retired Coast Guard officer James Loy says a ship captain bears huge responsibility.
updated 1:08 PM EDT, Mon April 21, 2014
Peter Bergen says the latest strikes are part of an aggressive U.S. effort to target militants, including a bomb maker
updated 9:45 AM EDT, Mon April 21, 2014
Cynthia Lummis and Peter Welch say 16 agencies carry out national intelligence, and their budgets are top secret. We need to know how they are spending our money.
updated 8:35 AM EDT, Mon April 21, 2014
Julian Zelizer says President Obama knows more than anyone that he has much at stake in the midterm elections.
updated 8:55 AM EDT, Tue April 22, 2014
Eric Sanderson says if you really want to strike a blow for the environment--and your health--this Earth Day, work to get cars out of cities and create transportation alternatives
updated 10:08 AM EDT, Mon April 21, 2014
Bruce Barcott looks at the dramatic differences in marijuana laws in Colorado and Louisiana
updated 4:47 PM EDT, Fri April 18, 2014
Jim Bell says NASA's latest discovery supports the notion that habitable worlds are probably common in the galaxy.
updated 2:17 PM EDT, Fri April 18, 2014
Jay Parini says even the Gospels skip the actual Resurrection and are sketchy on the appearances that followed.
updated 1:52 PM EDT, Fri April 18, 2014
Graham Allison says if an unchecked and emboldened Russia foments conflict in a nation like Latvia, a NATO member, the West would have to defend it.
updated 9:11 AM EDT, Fri April 18, 2014
John Sutter: Bad news, guys -- the pangolin we adopted is missing.
updated 2:25 PM EDT, Mon April 21, 2014
Ben Wildavsky says we need a better way to determine whether colleges are turning out graduates with superior education and abilities.
updated 6:26 AM EDT, Fri April 18, 2014
Charles Maclin, program manager working on the search and recovery of Malaysia Flight 370, explains how it works.
updated 8:50 AM EDT, Fri April 18, 2014
Jill Koyama says Michael Bloomberg is right to tackle gun violence, but we need to go beyond piecemeal state legislation.
updated 2:45 PM EDT, Thu April 17, 2014
Michael Bloomberg and Shannon Watts say Americans are ready for sensible gun laws, but politicians are cowed by the NRA. Everytown for Gun Safety will prove the NRA is not that powerful.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT