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.

Presented by

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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