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 1:54 PM EDT, Sun August 31, 2014
Carlos Moreno says atheists, a sizable fraction of Americans, deserve representation in Congress.
updated 12:25 PM EDT, Sun August 31, 2014
Julian Zelizer says Democrats and unions have a long history of mutual support that's on the decline. But in a time of income inequality they need each other more than ever
updated 12:23 AM EDT, Sun August 31, 2014
William McRaven
Peter Bergen says Admiral William McRaven leaves the military with a legacy of strategic thinking about special operations
updated 12:11 PM EDT, Fri August 29, 2014
Leon Aron says the U.S. and Europe can help get Russia out of Ukraine by helping Ukraine win its just war, sharing defense technologies and intelligence
updated 1:24 PM EDT, Fri August 29, 2014
Timothy Stanley the report on widespread child abuse in a British town reveals an institutional betrayal by police, social services and politicians. Negligent officials must face justice
updated 9:06 PM EDT, Fri August 29, 2014
Peter Bergen and David Sterman say a new video of an American suicide bomber shows how Turkey's militant networks are key to jihadists' movement into Syria and Iraq. Turkey must stem the flow
updated 11:16 AM EDT, Thu August 28, 2014
Whitney Barkley says many for-profit colleges deceive students, charge exorbitant tuitions and make false promises
updated 10:34 AM EDT, Fri August 29, 2014
Mark O'Mara says the time has come to decide whether we really want police empowered to shoot those they believe are 'fleeing felons'
updated 10:32 AM EDT, Thu August 28, 2014
Bill Frelick says a tool of rights workers is 'naming and shaming,' ensuring accountability for human rights crimes in conflicts. But what if wrongdoers know no shame?
updated 10:43 PM EDT, Thu August 28, 2014
Jay Parini says, no, a little girl shouldn't fire an Uzi, but none of should have easy access to guns: The Second Amendment was not written to give us such a 'right,' no matter what the NRA says
updated 1:22 PM EDT, Sat August 30, 2014
Terra Ziporyn Snider says many adolescents suffer chronic sleep deprivation, which can indeed lead to safety problems. Would starting school an hour later be so wrong?
updated 9:30 AM EDT, Fri August 29, 2014
Peggy Drexler says after all the celebrity divorces, it's tempting to ask the question. But there are still considerable benefits to getting hitched
updated 2:49 PM EDT, Fri August 29, 2014
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
updated 6:42 PM EDT, Tue August 26, 2014
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
updated 9:21 AM EDT, Wed August 27, 2014
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
updated 9:19 AM EDT, Wed August 27, 2014
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
updated 7:35 PM EDT, Tue August 26, 2014
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
updated 4:53 PM EDT, Tue August 26, 2014
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
updated 3:19 PM EDT, Tue August 26, 2014
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
updated 11:58 AM EDT, Tue August 26, 2014
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
updated 3:50 PM EDT, Mon August 25, 2014
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
updated 4:52 PM EDT, Mon August 25, 2014
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
updated 5:04 PM EDT, Mon August 25, 2014
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
updated 5:45 PM EDT, Fri August 22, 2014
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT