Under Bloomberg's Soda Ban, The Original Four Loko Would Be Legal

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The New York mayor's broadside against sugary soft drinks may seem like a crackdown, but it's hardly the fatal blow critics and supporters alike think it is.

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New York mayor Michael Bloomberg is making waves today over his new citywide ban on sugary soft drinks. According to The New York Times, Bloomberg's proposal would prohibit restaurants, movie theaters, and other "food service establishments" from selling sweetened sodas (or coffee) in sizes larger than 16 ounces. If it's approved, the anti-obesity measure could go into effect next spring.

The move's getting a lot of attention as an example of draconian government intervention. New York Magazine is calling it "an attack on delicious things." Over at The Atlantic Wire, Jen Doll pans it as a form of socio-economic discrimination.

But for a supposedly mortal blow against a public health menace, the ban actually leaves some sweetened beverages untouched. Again from The Times:

The measure would not apply to diet sodas, fruit juices, dairy-based drinks like milkshakes, or alcoholic beverages; it would not extend to beverages sold in grocery or convenience stores.

How big is this loophole, really? Well, big enough you could slip a massive Four Loko through it.

If it hadn't already been banned from the state in 2010 for its potent mixture of caffeine and alcohol, the original Four Loko would be safe from the law despite (a) boasting some 60 grams of sugar; (b) weighing in at a massive 23.5 ounces; and (c) containing the alcohol content of three to five beers and enough caffeine to fill three to four cans of Coca-Cola. That's because, at 12 percent ABV, Four Loko is considered a malt beverage, not a soft drink. Since nothing's changed about the new Four Loko except that it's now gone caffeine-free to comply with an FDA mandate, we can assume that Four Loko redux would be exempt from Bloomberg's ban.

Speaking of Four Loko, the drink's genre-defying characteristics pose a thorny problem for Bloomberg. The mayor's ban clamps down on sodas, but exempts fruit juice. How would the law deal with a beverage that claims to be both? This week, Taco Bell unveiled its latest concoction -- a blend of Mountain Dew and orange juice the company is marketing as "Mountain Dew AM." (The "A.M." stands for "morning," as Taco Bell is positioning the drink as a breakfast item.) Does Bloomberg consider this beverage a fruit juice -- which would exempt it from the ban -- or a soda?

With so many awful-for-you beverages that'll wind up slipping through the cracks, you might start to wonder, "what's the point?" especially when much of the reaction to Bloomberg's proposal so far has been one of libertarian outrage. 

In the mayor's defense, if it gets consumers to commit to healthier choices, the new measure could potentially go the way of the citywide smoking ban -- accepted, if not universally welcomed. But at least one major difference stands between the stricture against smoking and the sugary drink ban: while those who consume sweet soft drinks are only harming themselves, smokers pose a health risk to even non-smokers in the vicinity via second-hand inhalation. From an ethical standpoint, the smoking ban is on much firmer ground, even though both cases involve matters of personal choice.

The case of cigarettes may be instructive in a different way, though. We've already learned that aggressive labeling can effectively deter people from buying cigarettes. Canada and other countries have tried it. So what would happen if Bloomberg went after drink labels instead of swearing off sales of the beverages themselves? The approach could take different forms. One way to do it would be to slap sugary drinks with large textual warnings about obesity. Or you could show an image of a diseased heart. However you do it, an alternative like that could get Bloomberg the public health results he's looking for without taking anything away from people.

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Brian Fung is the technology writer at National Journal. He was previously an associate editor at The Atlantic and has written for Foreign Policy and The Washington Post.

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