Prohibition drugs alcohol soda

August 6, 2012
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The mayor of the nation's largest city, Michael Bloomberg of New York, has proposed a ban on sales of sugary drinks larger than 16 ounces by “food service establishments.” If implemented, the ban would be the first time a city in the U.S. directly limited the size of sugary drinks allowed for sale.

Is the “soda ban” a sign of things to come, or will the legislation quickly lose its fizz?

Of course, this is hardly the first time a government has prohibited something on the grounds that to do so is in society's best interest. Prohibition of alcohol in the United States and Europe during the early 1900s is largely regarded as a failure, and currently the debate rages about whether to legalize “soft” drugs such as marijuana. And the French legislature recently made headlines by banning clothing that covers the face in public places.

The goal of the mayor’s newest foray into prohibition is to fight back against the increasing rates of obesity, which costs an estimated $1,300 to $1,700 per household in the form of higher insurance premiums and government expenditures.

In New York City, more than half of adults are either overweight or obese, which can lead to increased risk of Type 2 diabetes, heart disease and strokes. Thus, fighting obesity seems like a worthy cause. The question is whether the mayor has chosen a sensible means of doing so.

The restaurant and beverage industries argue that they have been singled out and wonder why processed foods and candy with similarly high rates of sugar are not included in the ban. This is a valid point, though arguing for consistency from an elected official can be both principled and futile.

But, if a soda ban is a starting point for addressing public health concerns, there may be better ways to go about it.

In its current form, the proposed ban has too many loopholes. For example, restaurants can still offer unlimited free refills. And how about “two-for-one” soda promotions where a customer can continue to get 32 ounces of sugary goodness? The ban also would impose unnecessary costs on businesses, as customers ordering two or more drinks would double the materials used — cups, lids and straws — as well as increase labor costs.

But perhaps most perplexing is the choice of 16 ounces as the allowable size. Beverage companies sell drinks in 20-ounce bottles, for resale through delis, food carts, theaters and other small establishments. From a practical standpoint, if setting a ceiling on drink size is the goal, why not set it at 20 ounces so that companies can continue to sell their standard sizes?

The most obvious alternative to an outright ban is a tax, the simplest of all tools to guide public behavior. With bottled soda cheaper than bottled water, it is little wonder consumers may opt for unhealthier options. Taxing sugary drinks would incentivize people to consume less as well as increase government revenues, all with minimal enforcement required.

As a second impact, the tax revenue could be spent on tax incentives on healthy food or public health programs. Such programs could target the producers, the consumers, or both. In fact, New York's state legislature already considered and rejected the taxing idea, which left an executive ban as the only available method to limit consumption.

Legal challenges are the next obvious step for those opposed to the proposal, but their chances at success seem remote. Bloomberg's administration has previously implemented health initiatives such as a smoking ban within bars and a requirement that chain restaurants provide caloric information on menus. Both initiatives faced lawsuits. Both were upheld.

In order for the soda ban to be upheld, its champions would have to show that there is a rational basis for their action, namely that banning large sodas will limit consumption and result in health benefits, which is a legitimate government interest. Plaintiffs to a lawsuit would argue that the proposal’s limited scope — allowing grocery stores and other venues to continue selling any size soda, and permitting free refills and multiple purchases per person at all locations — undercuts the argument that consumption will be reduced.

Another route for challengers is to argue that the proposal would violate the U.S. Constitution's commerce clause, which prohibits states from harming interstate commerce. Challengers would argue that they are harmed by the proposal because they would have to create and manage a new “16 ounce and under” product line just for New York City. And, as we just saw from the Supreme Court's ruling on the Affordable Care Act, courts are increasingly hesitant to grant sweeping power under the commerce clause.

Still, public health is a government interest, and courts give broad leeway to legislation concerning such topics. A court would thus weigh the negative impact on interstate commerce against the government's right to regulate public health.

Even if a soda ban is struck down, the amount of publicity it has received may make people more aware of their unhealthy habits. Whether they choose to do anything about them is, and perhaps should be, up to them.

Jeff Gilson, who will be a second-year law student at the University of Chicago Law School this fall, is a summer associate with the law firm of Varnum LLP.

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