A Fight to Limit Sugary Drinks Enters Its Final Round

MICHAEL M. GRYNBAUM
JUNE 4, 2014
The New York Times
New York City’s battle over sugary drinks is entering its endgame. But much more than soda is at stake.
A plan to limit the sale of large, high-calorie beverages, a marquee effort by former Mayor Michael R. Bloomberg, will go before the State Court of Appeals on Wednesday, the city’s final recourse after a Supreme Court judge struck down the proposal last year.
But health advocates say they are less concerned about the fate of two-liter Coca-Cola bottles than something more consequential: the future ability of New York City to remain a pioneer in the field of public health.
The American soft-drink industry, in suing to stop the plan, contended that the city’s Board of Health — which has enacted limits on cigarettes and trans fats — went beyond its powers in trying to regulate sugary products, saying the board should restrict itself to narrower concerns, like eradicating diseases.
That argument, if upheld, could upend the board’s historic role as a muscular and innovative enforcer of healthy living standards, clearing slums to fight cholera a century ago; enacting a first-in-the-nation ban on lead paint in 1959, an initiative later replicated around the world; and fighting to have calorie counts posted on restaurant menus.
“New York City can act in the interest of its residents with more agility, and it can be more innovative, because we have a Board of Health that has legal authority,” said Dr. Mary T. Bassett, the city health commissioner and the board’s current chairwoman.
The soda case, Dr. Bassett said, could set a precedent that “blocks the Board of Health from doing just about anything to protect the health of New Yorkers.”
Lawyers for the soft-drink industry counter that the board, made up of medical professionals appointed by the mayor, has been too unfettered for too long, and that it waded into legislative territory by attempting to restrict the size of sugary beverages sold from restaurants, carts and bodegas.
“This case has never been about obesity,” the lawyers wrote in a brief prepared for the Court of Appeals. “It is about whether the unelected Board of Health has limitless power to impose on millions of New Yorkers its view of how they should live their lives.”
Two lower courts have already sided against the city, saying the Board of Health overreached on its soda proposal and suggesting that the sale of sugary products did not constitute an urgent risk to public health.
City officials dismiss that argument, saying the board has adapted, throughout its history, to the health challenges of the times.
“Obesity is certainly a public health issue,” Dr. Bassett said in an interview. “The Board of Health has its origins two centuries ago, at a time when causes of death were dominated by infectious diseases. Today, the causes of death are dominated by noncommunicable disease, including the twin epidemics of obesity and diabetes.”
The soda plan, proposed by Mr. Bloomberg in his final term as mayor, was broadly unpopular: About 60 percent of city residents said it was a bad idea. The soft-drink industry spent millions on a public-relations effort framing the plan as an infringement on consumer freedom.
But the plan also prompted worldwide debate over the role of soft drinks in causing obesity, and led some beverage companies to begin experimenting with smaller sizes.
That left Mr. de Blasio, a frequent critic of Mr. Bloomberg’s tenure, in an unusual position: defending one of his predecessor’s signature initiatives. And it has resulted in a split between the mayor and two of his typical political allies.
The city’s public advocate, Letitia James, and the City Council speaker, Melissa Mark-Viverito, are backing the soda industry, saying they believe the Board of Health should refrain from taking actions until directed to do so by the Council.
That argument — that the Council should decide matters of the city’s public health — is particularly relevant for the beverage industry, which has successfully fended off taxes and restrictions on its product in other cities by spending millions of dollars on lobbying and campaign contributions. Representatives of the industry contributed to the campaigns of Ms. James and Ms. Mark-Viverito last year.
Health Department officials say that too much Council control would “hamstring the board’s ability to respond promptly and flexibly to public health threats, as it has done for well over a century.”
And Dr. Bassett, the commissioner, said the board could only properly do its job of improving the health of eight million residents outside the vagaries of the political process.
“Who do we want to have making those decisions?” Dr. Bassett said. “It should be public health officials.”