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I rarely feel compelled to give my opinion publicly, but this one has me fuming. Mayor Bloomberg of New York City wants to ban supersized soda and sugary beverages sold at restaurants, delis, food carts, movie theaters, and arenas.  The ban would apply to any container holding more than 16 ounces, and if passed by the NYC’s Board of Health, could go into effect as early as March, 2013. Violators would face fines.

 Truth be told, I do not drink soda, even small serving sizes, and I do not serve it to my children. In my capacity as a mother, I am entitled to make those personal choices for my family and myself. Mayor Bloomberg is not. I like the Mayor, but he’s just not family. Sure, people would be healthier if they did not consume large amounts of soda. They also would be healthier eating nuts and legumes all day. Is Mayor Bloomberg going to restrict my portion size on other foods? Heaven forbid he start telling New York City restaurants to serve thinner bagels or insist on smaller size sandwiches at the world-famous Carnegie Deli. I might have to move to Los Angeles.

 To understand Mayor Bloomberg’s proposal fully, let’s look at historical precedents. 35 states have some sort of low tax on soda. Maine tried and failed to implement a high 20% tax. Taxes, however, are different from bans. Taxes still allow people to make choices for themselves. Sure there are plenty of bans on sodas in school, but what about bans on adults drinking soda? In 2010, San Francisco Mayor Gavin Newsom banned soda from being dispensed at any vending machine on public property. Whether such a ban is lawful is not the subject of this post, but it is worth noting that Mayor Bloomberg is going further by banning private sales of soda if the cup size is too large.

 Putting aside my own views on the government intervening in my life, has Mayor Bloomberg eclipsed his authority? From a procedural perspective, Bloomberg seeks to avoid a vote on this measure by making it part of the Health Department’s Regulations. City Council Speaker Christine Quinn, however, is meeting with lawyers to see if there is a way to compel Bloomberg to put it to a vote.

 From a legal perspective, cities and states can regulate in the name of public health so long as there is a rational basis for the regulation. Mayor Bloomberg is not banning the sale of all soda, just lots of it.  One the other hand, he is not banning diet soda which has the same capacity to leach calcium out of your bones as regular soda. Why not also ban the sale of cartons of cigarettes as opposed to single packs on the theory that cartons clearly do more damage than a small pack of cigarettes?  The reality is that while the ban seems arbitrary, but it is difficult to prevail on rational basis challenges to public health initiatives. (Keep in mind that rational does not mean reasonable.)

 Could there be a constitutional challenge on the basis of the Commerce Clause? Soda manufacturers or bottlers would have to show that the proposed regulation discriminates against out of state actors or has an effect of favoring instate actors. In the alternative, they would have to prove that changing the size of their beverage containers for nationally shipped products would be costly and burdensome and thus negatively affect interstate commerce without having much effect on obesity. Watchdog groups may be pondering such challenges.

In the meantime, what should a restaurant do? Offer refills. Or follow the lead of some restaurateurs in California who are facing a de facto ban on the sale of foie gras after July 1, 2012.  To skirt the ban, some restaurants are threatening to offer foie gras for free with sale of $20 glasses of wine. What about beverage companies? They will have to decide whether to repackage their bottles (standard size now is 20 ounces) to meet the standards of one city if this regulation goes into effect.

 What about consumers? They may end up at 7-11 drinking Big Gulps, or buying more beverages at Citifield (the Mets need some money I’m told). Or maybe they’ll replace their soda habit with something even worse— Starbucks Iced Peppermint White Chocolate Mocha in a Venti 24 ounce size.

 Not me. As I said, I do not drink soda, but I’m still eating my giant plate of pasta. 

Copyright Kyle-Beth Hilfer, P.C. 2012. Kyle-Beth Hilfer is an advertising and marketing attorney, of counsel to Collen IP. She regularly advises clients on advertising and marketing strategies, including regulatory interpretation and how to market in a regulated environment.  To contact Ms. Hilfer, please visit her FohBoh profile or tweet her @kbhilferlaw. 


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