Bloomberg’s Failed Soda Ban (2013 Apr)

by Barry A. Liebling

The recent court ruling in New York City has garnered a lot of attention. Some observers identify it as a victory for freedom while others are unhappy and call it a setback for public health. Just before Mayor Bloomberg’s new soda law was about to kick in a New York judge blocked it calling the new regulation “arbitrary and capricious.” The law would have made it illegal for many establishments – such as restaurants and diners – to sell sugary beverages (mostly sodas) in glasses or containers larger than 16 ounces. Excluded from the ordinance were retailers not under the jurisdiction of the city – which includes supermarkets.

The mayor and his accomplices were deeply disappointed and psychologically bruised. They displayed righteous indignation that the new law – which they viewed as a positive step in the right direction – was being thwarted by a legal technicality.

It is significant that Mayor Bloomberg rationalized his soda ban law as being all about public health. According to the mayor too many New Yorkers are overweight, and a contributing factor to their obesity is sugar-laden soft drinks. Putting a limit to how much sweet soda can be sold in a single serving would nudge citizens to make better choices. Taking away a person’s power to buy “big gulp” portions would induce him to be satisfied with soda fixes that are more modest and dainty. Supporters of the measure pointed out that while reduced soda sizes would not entirely solve the obesity problem in New York, it should help.

Of course, many observers knew from the start that there was nothing benevolent about the soda ban and reflexively found it repugnant. Unfortunately, some critics fell for Bloomberg’s misdirection trap and ceded that the crux of the matter was how the law would effect the incidence of overweight New Yorkers. They concocted complicated arguments to show that the effect of the soda ban is unknown or would be trivial. Many pundits pointed out that the new law does not apply to all beverages or to any food. So an obese person could remain fat by ordering a different high-calorie drink or an extra entree to compensate for the reduced calories in his soda.

The fundamental error of this rejoinder is that it opens up the door for even more government interference. If the law leaves out some sweet beverages perhaps it should be extended to cover them all. If it fails to address food, perhaps new regulations should cap how many calories a restaurant can put on one dish.

Many critics of the soda ban, and this includes the typical man and woman on the street, correctly recognized the fundamental issue at stake – individual freedom. Either you have sovereignty over your own life or you don’t. You can understand and support individual rights or you can reject the concept of individual rights and yearn for the strong arm of government to direct and discipline its subjects.

The 16 ounce soda law is emblematic of an intrusive state that considers personal freedom a privilege some people can have some of the time. The general rule, however, is that government officials – popularly referred to as the nanny state – have the legitimate authority to micro-manage every person’s life.
Mayor Bloomberg’s position on the issue of personal autonomy is especially interesting. He has explicitly and repeatedly asserted that the 16 ounce soda law does not violate anyone’s freedom. To paraphrase the mayor, “Nobody is taking your freedom away. If you want a 32 ounce soda you can buy two 16 ounce sodas. The law is just a reminder to help you make the right decision.”

Of course, the assertion is false. The soda regulation was designed to be a strong proscription against voluntary, mutually beneficial commerce. In a free society the portion size of sodas is the result of food vendors and customers coming to an agreement. Some establishments might sell tiny 4 ounce shots of sugary beverages while others could boast that they provide portions even larger than a “big gulp.” The proper role of government is to assure that the relationship between the buyer and seller is not corrupted by force or fraud.

Mayor Bloomberg is an intelligent man who should know the significance of his policies. Why would he claim his soda ban does not violate freedom?

One possibility is that the mayor is acting cynically and is deliberately saying what he hopes will mollify apprehensive citizens. He knows that many people value personal autonomy and bridle at the prospect of losing any of it. The mayor may be attempting to fool New Yorkers into believing that taking away their options does not really abridge the choices they can make.

An alternative scenario is that the mayor really believes what he is saying. He has an ardent desire to control the personal lives of citizens. At the same time he does not want to be the bad guy who violates anyone’s freedom. How can he resolve this cognitive dissonance? He can employ a peculiar and flawed definition of freedom. A new law does not attenuate your autonomy so long as there is some way to get what you want.

No matter how many obstacles the government puts in front of you, you cannot complain if the mayor tells you how you can get around them. If you want more than 16 ounces of soda you should make multiple purchases. By this reasoning the mayor could propose an 8 ounce or 4 ounce limit on soda portions without trampling on your autonomy. If you want more all you have to do is buy lots of servings. Note also, he could propose a hefty tax on individuals who order more than one serving. There would be no loss of freedom because all you have to do is pay the tax. The mayor’s concept of the relationship between government regulation and personal freedom is flexible. It gives the green light to almost any burden the government demands.

The recent court ruling in New York City was helpful, but it focused exclusively on the legal attributes of the regulation. The more important issue is conceptualizing freedom correctly – which is essential if you hope to preserve your autonomy.

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