Wednesday, March 13, 2013

The (Sugary) Sodas of New York

I practice municipal law, and have watched with some interest the curious crusade of the current mayor of New York City to enforce, as it were, the good health of its citizens in various respects.  Imposing a limitation on the size of sodas with sugar (more alliteration!) seemed to me particularly odd, and I'm not surprised the imposition of this particular regulation has been enjoined.  I am somewhat surprised, though, by the reaction of some to the ruling.

Typically, the governing bodies of municipalities are accorded a great deal of discretion in the law.  That is to say, courts are not supposed to substitute their judgment for that of the local legislature.  Courts are not to strike down local regulations because they disagree with the wisdom of the legislature, i.e. if they think they are or would be ineffective or find them politically disagreeable.  Local legislatures require in most cases only a reasonable basis to support their enactments which are directed to supporting or increasing the public health, safety and welfare.

It is both interesting and significant, therefore, that in this case the New York City Council, its governing body, its legislature, did not adopt this regulation.  Instead, it was adopted by an administrative body of the city, apparently at the direction of the mayor--it's even possible the mayor may have drafted the regulation or was otherwise personally involved in its preparation.  The fact the regulation was not legislation figured in the court's decision to issue the injunction.  The claim was made that the Board of Health of the city had been delegated legislative authority adequate to allow it to promulgate the regulation, but this was rejected by the court; rightly, I think.

Had the regulation been an enactment of the governing body, I think it would have been more difficult to justify an injunction.  Presumably, however, the City Council did not become involved because those who wanted such a regulation to be adopted believed it would not be adopted by the city's governing body.  This seems to be the case, as apparently several members of that body supported the effort to enjoin the enforcement of the regulation.

The court also found that the regulation exempted various purveyors of sugary sodas for reasons which had a political motivation, rendering the regulation arbitrary.  This is, of course, never a good sign.  For my part, I have always wondered why soda in particular was made the target of regulation.  Accepting obesity is bad, and can have a negative impact on public health and welfare, what evidence is there that soda as opposed to other drinks or foods, e.g. donuts, requires regulation more than anything else which contributes to obesity?  The mere claim or even the fact there is an "obesity epidemic", which is something we hear very often, doesn't provide legal support for a regulation which purports to restrict only the sale of a product of a particular size, which may contribute to obesity if purchased and consumed in quantity.  As a rule, more of a connection between an enactment and an evil should be required.  Therefore, those who claim such a regulation is needed, and legally appropriate, because of the prevalence of obesity are employing a red herring.

The claim that such a regulation is needed because manufacturers of soda strive to sell their product would justify regulation of most any product which can cause weight gain.  What is it about the advertisement which renders regulation necessary?  The mere fact that there is advertisement of a particular product should not be objectionable unless false advertising is involved or unless a product is inherently dangerous.

I've avoided thus far the question whether government should be regulating such things as the size of sodas.  I am one who thinks that government regulation is inappropriate in the absence of evidence that the conduct/product regulated is the cause, or at least a primary cause, of a significant problem.  However, I also think that it is necessary to allocate resources, i.e. to weigh problems presented to government and emphasize the resolution of problems which are more pressing than others.  I question whether resources are intelligently devoted to the restriction of soda size given other conduct which effects public health, welfare and safety, regardless of whether it can be established the sale of soda in certain amounts causes obesity.  Simply put, there are other and much bigger fish to fry. 

Just why this enactment was made a priority is an interesting question.  This is one of the reasons why the legislative process should be involved in decisions of this kind.  The personal hobbies, prejudices or concerns of politicians should not be made policy or law, and they are less likely to attain that status when dependent on a legislative body. 

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