David R. Henderson  

Overturning the Soda Ban: One Small Blow for Freedom

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New York City's plan to ban large sugary drinks from restaurants, movie theaters and other establishments was invalidated by a judge on Monday, the day before the new law was to take effect.

State Supreme Court Justice Milton Tingling in Manhattan called the regulation "arbitrary and capricious" and declared it invalid after the American Beverage Association and other business groups had sued the city challenging the ban.

The decision was a blow to Mayor Michael Bloomberg, who had touted the ban as a way to address what he has termed an obesity "epidemic." Beverage manufacturers and business groups had called the law an illegal overreach that would infringe upon consumers' personal liberty.


From Reuters, "New York City cannot ban sales of large sodas: judge." March 11, 2013.

HT to Instapundit.

In case you missed Seth Goldman's excellent op/ed on the ban last summer, here it is. Remember that the ban is/was on drinks with more than 16 ounces. In light of that, here's one of Goldman's best paragraphs:

We initially went with 16.9 oz. (which is 500 milliliters) because it is a standard size that our bottle supplier had in stock at the time. We subsequently invested several hundred thousand dollars for 16.9 oz. bottle molds. Is 16.9 ounces the perfect size? Who knows? As a beverage marketer, we willingly submit to the unforgiving judgment of the market. What we did not anticipate was an arbitrary decision to constrain consumer choice.


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CATEGORIES: Regulation



COMMENTS (20 to date)
Grieve Chelwa writes:

Thanks David for the pointer to this story. Just out of curiosity, would you instead favor levying an excise tax on sodas as opposed to the outright ban Bloomberg was going for (in light of the negative health effects of added sugar)?

David R. Henderson writes:

@Grieve Chelwa,
You're welcome.
would you instead favor levying an excise tax on sodas as opposed to the outright ban Bloomberg was going for (in light of the negative health effects of added sugar)?
No. I would tell you why, but I would rather leave that as an exercise for readers.

Tim writes:

I would say that it's not really the proper role of government to arbitrate what is and isn't "healthy."

Allow these products to thrive or die in the market, without subsidies or punitive taxes.

And yes, I would favor the abolition of all "sin taxes" on alcohol, tobacco etc.

If your response has anything to do with the socialization of medical costs, I'd also say I'd favor the repeal of those programs as well.

Salem writes:
And yes, I would favor the abolition of all "sin taxes" on alcohol, tobacco etc.
It is certainly possible to drive safely, operate heavy machinery, etc, while having an elevated blood alchohol level, I believe most libertarians accept these blanket prohibitions, because the behaviour is statistically likely to lead to undesirable consequences for third parties. But the consumption of alchohol impairs judgement generally, and frequently leads to violent and disorderly behaviour. This, no less than drunk driving, imposes an externality on third parties. Therefore it seems that some sort of Pigouvian "sin tax" is appropriate on alchohol (but not cigarettes or fizzy drinks).

However, the government does need revenue, and economic theory and a libertarian sense of justice suggest that taxes are best levied (1) on consumption and (2) on items with low elasticities. By these measures, sin taxes are ideal.

Peter writes:

I do not understand the title. Why is overturning the soda ban one small blow to freedom? Isn't it upholding or restoring freedom of choice? What am I missing?

Peter writes:

Many folk (and media outlets) are missing this wasn't overturned based on "the government has no right to tell you what size soda you can and cannot drink" but on executive overreach grounds, i.e. it's could be read as Pyrrhic victory.

[edited per commenter request--Econlib Ed.]

Jule Herbert writes:

The judge's opinion seems to be based on the fact that the ban was not passed as a legislative act but by administrative rule. The point is that the city council (assuming "home rule") could enact such a ban or anything else under its broad "police powers" -- and that would be OK. If the health department issues the decree it is "arbitrary and capricious." On the other hand, if a democratic government, apparently at any level, did it it would not be arbitrary and capricious but a valid exercise of the police power. This is not a very satisfactory analysis, but perhaps it is something that can be built upon.

Ray writes:

It was.

Mayor will appeal though.

Brandon H writes:

I personally am glad that this ban is being lifted. While I have never been to New York City and never plan on going there, I was afraid that this ban could still have affected me by inspiring similar bans in my home town and here at college. I never saw the ban as a way to fight the obesity epidemic. For me, this sort of ban would only make me buy 2 or more of the same drink in order to get above this 16.9 ounce limit.
Banning the sale of 16.9 ounce and larger drinks would be akin to limiting cigarette packs to contain less than 20 to 25 cigarettes (the current amount I believe, though I do not smoke). I think people who want to smoke would still smoke as many; they would simply have to buy more packs. Therefore I don’t believe that limiting the amount of cigarettes per pack would somehow fight against lung cancer or emphysema. This same logic holds true for drinks, and shows how this ban couldn’t effectively fight obesity.
The companies that make and bottle these drinks were following consumer demand and it seems foolish to think that limiting the beverages size would do anything to change that. I feel that anyone who is looking for a way to fight the obesity epidemic shouldn’t be limiting the makers or bottlers of such drinks; only informing the consumer of the facts of the situation. Everything revolves around the consumer here and whether or not you believe that this sort of ban infringes on personal liberty, it is still the wrong thing to do simply on the basis of not being effective at achieving its goal; fighting obesity.

David R. Henderson writes:

@Peter,
I do not understand the title. Why is overturning the soda ban one small blow to freedom? Isn't it upholding or restoring freedom of choice? What am I missing?
You're missing the preposition. It's "for," not "to."

Eric Evans writes:

What I find funny is that anyone thought this ban was seriously going to go into effect. This is the classic political move, enact a law that will no doubt be overruled but will garner credulous support from the masses. Bloomberg wins. He was going to do something about it, it was that darn judicial system...

egd writes:
would you instead favor levying an excise tax on sodas as opposed to the outright ban Bloomberg was going for (in light of the negative health effects of added sugar)?

Who is Kris Gunnars, and what does she (?) base her knowledge on?

Why is Kris Gunnars more capable of deciding what types of food I can consume than I am?

If Kris Gunnars is more capable of deciding what types of food I can consume, why do we need 51% of the population to recognize her authority and empower her to decide what type of food I can consume?

Michael writes:

Whether or not you think this legislation makes sense, it's pretty ridiculous to frame it as a "freedom" issue. For people who truly aren't satisfied with "only" 16oz, they could easily buy 2. This is about protecting the ability for movie concession stands to make a few more cents of profit at the expense of their customer's health.

The failure of socialism is that it ignores human greed. People will only work hard if they can benefit materially.

Similarly, the failure of free market capitalism is that is also ignores human greed. The goal is to maximize profits. If those profits come at someone's expense, the market doesn't care.

enoriverbend writes:
Whether or not you think this legislation makes sense, it's pretty ridiculous to frame it as a "freedom" issue. For people who truly aren't satisfied with "only" 16oz, they could easily buy 2.

This argument is equivalent to saying, whenever the government takes away one of your choices in life, if there is any workaround or loophole, they didn't take away one of your choices.

This is about protecting the ability for movie concession stands to make a few more cents of profit at the expense of their customer's health.

Your theory is that all of the opposition to the mayor's ban is driven by the theater cartel? Really?

I believe a large part of the opposition is from the "is there nothing so small and trivial, so relatively harmless, that it can escape the all-seeing eye of the nanny state?" crowd of which I am a member.

Grieve Chelwa writes:

@egd

According to the website I linked to, Kris Gunnars is a medical student who spends his spare time blogging about the latest scientific research on nutrition and health. So his food advice is based on his reading of the scientific evidence, something anyone else can do (Gunnars always backs up his assertions with hyperlinks to the original peer reviewed articles). And my experience with reading his blog is that he doesn't so much decide what foods you should eat as merely giving advice.

Michael writes:

enoriverbend,

I don't think for a second that the enormous obesity problem in the US is "small and trivial". Of course this ban wouldn't solve the problem, but it is a small step in the right direction. The free market has certainly failed us so far. Maybe some people actually do need a nanny.

Pave Low John writes:

@Michael,

Folks such as yourself, that see nothing wrong with "bans" and "prohibitions" that are applauded because, after all, it's for our own "good", remind me of that quote from C.S. Lewis:

"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."


That is the truly scary thing about people like Bloomberg, he constantly pats himself on the back, secure in the knowledge that everything he is doing is just and right, and that if he could only assume the powers of a dictator, he could solve all of our "problems" in no time. Most politicians have a touch of this (*cough Obama cough cough*) but Bloomberg really seems fanatical in his desire to control every aspect of life in NYC.

Freedom just keeps slipping away these days, one slice at a time...

Joshua Hall writes:

What is the proper amount of obesity? Many commenters on this issue suggested that obesity is "too high" without specifying what too high means or how that conclusion is arrived at. I suppose the implicit argument is that any amount of obesity is too much but that's not an argument that is consistent with recognizing that individuals face trade-offs and might be doing other things with their lives besides minimizing the probability of being obese.

egd writes:

@Grieve Chelwa:
I think you misunderstood my comment.

While Mr. Gunnars may be extremely intelligent and well-read, why should I be forced to follow his advice, either through compulsion or nudging?

Jack Davis writes:

I don't think it's accurate to call it a "ban". No one's prohibited from drinking soda, they just have to get a refill if they want more. It's a restriction (silly in my opinion), but not a ban.

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