I love it when petty tyrants are struck down:
New York City’s crackdown on big, sugary sodas is staying on ice.
An appeals court ruled Tuesday that the city’s Board of Health exceeded its legal authority and acted unconstitutionally when it tried to put a size limit on soft drinks served in city restaurants.
In a unanimous opinion, the four-judge panel of the state Supreme Court Appellate Division said that the health board was acting too much like a legislature when it created the limit, which would have stopped sales of non-diet soda and other sugar-laden beverages in containers bigger than 16 ounces.
The judges wrote that while the board had the power to ban “inherently harmful” foodstuffs from being served to the public, sweetened beverages didn’t fall into that category. They also said the board appeared to have crafted much of the new rules based on political or economic considerations, rather than health concerns.
Bingo. In fact, they were instrumental in carrying out the wishes of one man – Mayor Michael Bloomberg. His is a personal agenda that has little to do with health and much to do with what he perceives as his duty to stop people from using substances that he deems harmful.
Thankfully the court said he doesn’t get to do that – at least not without substantial evidence to support his use of a ban. If ever there was an example of “arbitrary and capricious”, Bloomberg’s ban defines it.
But as a rule, petty tyrants don’t like getting their hands slapped. So, instead of seeing the handwriting on the wall, this one will spend more of NY taxpayers money pursuing a loss in a higher court:
The city’s law department promised a quick appeal.
“Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic,” Mayor Michael Bloomberg said in a statement.
And if you ever wanted to understand why these busy-body do-gooders exist, here’s a fine statement to illustrate the point and the problem:
“We have a responsibility, as human beings, to do something, to save each other. … So while other people will wring their hands over the problem of sugary drinks, in New York City, we’re doing something about it,” Bloomberg said at a news conference after the measure was struck down in March.
Uh no, you don’t “have a responsibility” to “do something”. It’s none of your freaking business, sir. What you are doing is interfering in the life of people who haven’t asked you to do so and are therefore violating their right to do as they wish as long and they don’t violate the rights of others. That’s something petty tyrants can’t seem to get through there heads.
Freedom means the right to be fat, unhealthy and to fail. You may not like those things personally, but that indeed is the cost of freedom. If you’d prefer to be free to make your own choices rather than have some nanny make them for you, then you believe in freedom. Mayor Bloomberg does not.
In the case of Michael Bloomberg’s overreach in banning a specific size of soda drink, the defender is some fellow named Lawrence Gostin. The headline of the article he’s written is “Banning large sodas is legal and smart”.
Really? Legal and smart? His defense of the indefensible has him channeling Paul Krugman, or at least emulating him.
As I’ve said before, it’s always wise to check the premise on which someone like this operates. In this case, the premise is, as you might expect, flawed and the reasoning thin. It all comes down to a word – “imminent” – and the author’s obvious belief that it is the job of government to save us from ourselves. You have to dig through the article a bit, but here’s where Gostin’s claim of legality comes from:
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.
Uh, no, obesity doesn’t qualify as an “imminent” threat such that a Board of Health can arbitrarily declare something “banned”. Why not king size candy bars? Why not New York cheese cake? Why not a whole plethora of sugar soaked products? Well, if you’re paying attention, I’m sure you’ve realized that if this had flown, such bans were likely not far behind.
But back to Gostin. Here’s his real argument:
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.
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.
Because we don’t, in his opinion, “demand a standard of proof” from lawmakers in any other field, we shouldn’t, apparently, demand that standard in this field. After all it is a “public health imperative” which is “backed by science”. Where have we heard that before (*cough* global warming *cough*)?
So we shouldn’t ask lawmakers to prove that a) obesity is an imminent threat and b) banning large sodas will defeat that threat? Because that’s certainly the premise.
In fact, we should do precisely the opposite of what Gostin says. We should demand “a standard of proof” from out lawmakers that requires they prove whatever bill they’re contemplating is in fact necessary. Want to ban “assault weapons”. Prove to me that such a ban will “curb gun violence”. Stats seem to indicate it will have no effect. The lapse of the previous ban showed no appreciable increase in gun violence and we’ve seen an overall decrease in violence as a whole.
In this case, the ban Gostin tries to defend and contrary to his headline claims, was neither legal or smart. It was arbitrary and poorly thought out (if it was thought out at all – seems more like it was a capricious act grounded in an inflated belief in the power Mayor Bloomberg thought he had). And according to a NY state judge, it wasn’t legal either.
Of course Gostin tries a transparently obvious bit of nonsense by blaming the failure on “Big Food” and a compliant judge buying into their arguments. It is the usual fall back position for someone who has nothing. And his trump card is to compare the food industry to, you guessed it, the tobacco industry. “Big” anything to do with business or industry is a liberal boogyman invoked when arguments are weak. And Gostin’s is about as weak as they come. His attempt to fob this off on the “usual suspects” is, frankly, laughable.
I note this particular “defense” by Gostin simply to point out that there are people out there, people others consider to be rational and intelligent (and, apparently, who can get things published on CNN) that can rationalize curbing you freedoms and liberties through the use of force (law and enforcement) because they actually believe they know what is best for you and have the right to act on that on your behalf.
What we need to do, quickly, is find a way to dissuade the nannies of the world from that belief. They need to understand that freedom means they’re free to act on what they believe in circumstances like this but they’re not free to decide that others must do it too, because they’ve decided that’s the “smart” thing to do. Freedom means the right to fail, get fat, do stupid things (that don’t violate the rights of others), etc. We’re issued one mother in our lives. And it’s not the state.