Freedom Fizzles in NYC with Proposed Super Sided Soda Ban

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. 

Views: 301

Tags: Bloomberg, Mayor, NYC, anti-obesity, ban, soda


You need to be a member of FohBoh to add comments!

Join FohBoh




Social Wine Club for Craft Wineries


Red Lobster crafts new, high-end image

Red Lobster will nix low-price specials and focus on flourishes like plating in order to reshape itself as a cut above dine-i -More

The Year of the Instagram Strategy
Managing the Instagram channel has become a strategic imperative for any brand or small business, and the urgency grows daily along with its user base. During this webinar on August 12 you'll hear how brands such as Disneyland Resort, JCPenney, and The Coffee Bean & Tea Leaf are utilizing this platform to connect with their customers in an authentic, relevant way. Register today!

The tweet's the thing

Everyone’s atwitter about the NRA's Kids LiveWell Twitter party, held in celebration of the program’s third anniv -More

Arby's meaty campaign highlights protein lineup

Arby's new campaign, "We have the meats!," focuses on the chain's new limited-time menu offering, the Mega Meat Stack, which  -More


Posting a job or finding a job starts here at FohBoh. Call us about special $50 posting packages to syndicate across all major jobs boards.

National News

Restaurant Trends - Growing And Emerging Concepts - Change and Activity July 29, 2014

Update from on growing and emerging restaurant concepts

Gen Z, the First True Digital Generation, Represents the Future Foodservice Consumer

Gen Z, the first true digital generation, represents the future foodservice consumer. They're a generation on the move that strongly prioritizes speed of service, technology, and having what they want, when they want it. Millennials, more so than older generations, prefer to visit restaurants that offer new and unique foods and flavors. Gen X and Boomers converge on several preferences—such as the importance of a convenient location.

Red Robin Gourmet Burgers Celebrates Its 500th New Restaurant Opening

Red Robin's 500th new restaurant opening will open on Aug. 4 at 11 a.m., in Milpitas, Calif. at the Great Mall of the Bay Area.

Darden Completes Sale Of Red Lobster To Golden Gate Capital

Darden Restaurants, Inc. (NYSE: DRI) and Golden Gate Capital today announced that Golden Gate has completed the acquisition of the Red Lobster business and certain other related assets and assumed liabilities for approximately $2.1 billion in cash.

Dunkin' Donuts Announces Plans For Seven New Restaurants In Duluth, Minnesota With New Franchisees Brian And Sharon Weidendorf

Dunkin' Donuts announced today the signing of a multi-unit store development agreement with new franchisees, Brian and Sharon Weidendorf, to develop seven restaurants in Duluth, Minnesota and the surrounding areas. The first restaurant is planned to open in spring 2015.


If you are looking for capital to start or grow your restaurant, create the next 501c3, develop and launch the next app for the restaurant industry,or want to help your peers in some meaningful way, we want to know about it.


TED: Ze Frank: Are you human? - Ze Frank (2014)

Have you ever wondered: Am I a human being? Ze Frank suggests a series of simple questions that will determine this. Please relax and follow the prompts. Let's begin …

TED: Heather Barnett: What humans can learn from semi-intelligent slime - Heather Barnett (2014)

Inspired by biological design and self-organizing systems, artist Heather Barnett co-creates with physarum polycephalum, a eukaryotic microorganism that lives in cool, moist areas. What can people learn from the semi-intelligent slime mold? Watch this talk to find out.

TED: Shih Chieh Huang: Sculptures that’d be at home in the deep sea - Shih Chieh Huang (2014)

When he was young, artist Shih Chieh Huang loved taking toys apart and perusing the aisles of night markets in Taiwan for unexpected objects. Today, this TED Fellow creates madcap sculptures that seem to have a life of their own—with eyes that blink, tentacles that unfurl and parts that light up like bioluminescent sea creatures.

TED: Nikolai Begg: A tool to fix one of the most dangerous moments in surgery - Nikolai Begg (2013)

Surgeons are required every day to puncture human skin before procedures — with the risk of damaging what's on the other side. In a fascinating talk, find out how mechanical engineer Nikolai Begg is using physics to update an important medical device, called the trocar, and improve one of the most dangerous moments in many common surgeries.

© 2014   Created by FohBoh.

Badges  |  Report an Issue  |  Terms of Service