The Precedent in Regulating Soda

When a New York court hears a case this week that would limit the size of sugary-drink containers, the ruling will go well beyond soda. It will scope the potential role for governments in preventive health movements.
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On June 4, the judges of the New York State Court of Appeals will hear a case that has supplied months of material for late-night comics, but that could seriously affect our health. The judges will decide whether the New York City Board of Health can require restaurants in the city to serve sugary drinks in containers of 16 ounces or less.

The portion cap rule isn’t a ban, and it isn’t about restricting freedom or choice. It’s simply a regulation on the size of containers, not on the amount people drink. Under the rule, people could still buy and drink as many ounces of soda as they want. Restaurants could even sell as many ounces as they want, bundling 16-ounce cups if they cared to.

The rule actually would increase choices on the healthy end of the range, because right now in some New York City movie theaters, the smallest size container of sugary drink is 32 ounces (a quart). People can always buy two portions, but are unable to buy a half of one.

The legal case will not be about protecting small businesses, either, as some have suggested. The portion cap would apply to every food-service establishment with a permit to operate in New York City, from McDonald’s to the Four Seasons. Most independent restaurants already don’t serve sugary drinks in containers larger than 16 ounces. The restaurants selling gargantuan portions (up to half a gallon at KFC) are mainly big chains. 

The case is about whether the New York City Board of Health has the authority to regulate restaurants in ways that protect the health of the City’s residents, over the fierce objections of some of the world’s biggest corporations, the soda companies. And, more important, whether the Board can protect New Yorkers from many other current and future health hazards, from unsafe conditions on the city’s beaches to toxic chemicals in food or water.

Established in 1805, the New York City Board of Health was, for most of the 1800s, composed of the mayor and the Common Council—the predecessor to today’s City Council. After epidemics of cholera and dysentery between the 1830s and 1860s, it became clear that these local elected officials were unsuited to preventing epidemics; the council was then restructured into a committee of appointed officials led by physicians. It retains that basic structure now. 

As laid out in the City Charter in New York State law, the Board of Health has the authority to issue regulations that protect New Yorkers from all health threats, including chronic diseases. Over the decades, the BOH has responded to the emerging health threats of each era, requiring reporting of cases of tuberculosis in 1897, banning lead paint in homes in 1960, and requiring landlords to install window guards in buildings to protect toddlers from falls in 1976. 

The Board has regulated restaurants for decades, and its rules can be very intrusive. Just ask any restaurant manager what he thinks about the health department’s inspectors fining them for having a cutting board with deep grooves or a gap under the doorframe big enough to fit a mouse. None of those rules to reduce the risk of food poisoning, though, would prevent nearly as much disease as a reduction in consumption of sugary drinks, which is a key driver of the twin epidemics of obesity and diabetes that are killing some 100,000 Americans a year.

Over the last few decades, soda companies have learned a puzzling but well-established fact of human nature: When beverages are served in larger containers, people just drink more. When McDonald's opened in the 1950s, the only size of sugary drink sold was seven ounces. Now, a “medium” at McDonald’s is three times as large at 21 ounces and a “small” is 16.

Pumping up container sizes is not the only marketing technique soda companies and chain restaurants used to nearly triple the consumption of soda between the 1970s and 2000, but it’s a powerful one. And that’s why they are fighting the portion rule ferociously.

To the surprise of those of us that worked on the rule, the lower courts have ruled with the soda companies, saying that the Board of Health does not have the authority to set limits on container sizes. The lower-court rulings were shockingly broad. The first-level court (called the Supreme Court in New York State) ruled that the Board of Health only had jurisdiction over diseases that were “communicable, infectious, and pestilent.” The Appellate Division decided that the Board could not pass rules in any area unless specifically directed to do by the City Council.

If either of these rulings had been in place in the past, many thousands more people in New York City—and perhaps millions more nationally—would still be suffering with brain damage from lead in paint. If they stand now, they block the ability of the Board of Health to protect New Yorkers from all of the leading killers of today, including heart disease, cancer, and diabetes.

If you don’t live in New York City, why should you care? Because cities can initiate change that might take federal agencies decades to act on. It took the federal government 18 years to ban lead in paint after New York City passed its law, but at least it acted eventually. In recent years, the New York City Board of Health has barred restaurants from putting artificial trans fats in food; the FDA is now considering a broader ban on artificial trans fats for the nation. And the BOH required chain restaurants to post calorie counts on menu boards, which will soon become a national mandate as part of the Affordable Care Act.

What’s at stake, then, is not just whether a committee of health experts or Big Soda decides how large the cups can be at McDonald's. What is at stake is whether New York City can authorize health experts to issue rules to protect its residents from any health threat. What’s at stake is our health in New York City but also well beyond.

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Dr. Thomas Farley is the Joan H. Tisch Distinguished Fellow in Public Policy at Hunter College and the former Commissioner of Health for New York City. More

Dr. Thomas Farley is commissioner of the New York City Department of Health and Mental Hygiene. Under his leadership, the agency is addressing the social and environmental factors underlying the nation’s greatest public health threats, including smoking, obesity, diabetes and heart disease. Dr. Farley is trained as a pediatrician and served in the Centers for Disease Control’s Epidemic Intelligence Service. He has conducted research and published articles on a wide range of topics, including Legionnaires’ disease, prevention of HIV/STDs, youth violence, infant mortality, and obesity. He is coauthor with RAND Senior Scientist Deborah Cohen of Prescription for a Healthy Nation.
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