In my June 5, 2012 commentary on the proposal, I wrote:
"Think this proposal would mark the end of Slurpies and Big Gulps from Seven Eleven and similar monster soda and sugar drinks from other convenience stores?"
"The answer is no. And that goes to show the pointlessness of the proposal. The regulation is so limited that it will have no effect on the public's health. Why ban the sale of monster sodas only in restaurants? What good is a restaurant monster soda ban if people can still walk into a Seven Eleven and purchase a 64-ounce Double Big Gulp? How often do people go to the movies such that banning the sale of monster sodas in theaters is going to combat the city's obesity epidemic? What sense is there to ban monster sodas in delis if in those same restaurants, a person can order a humongous milk shake?"
On Tuesday, Justice Milton Tingling of the Supreme Court of the State of New York in Manhattan asked the same questions in invalidating the regulation.
The two key points of his decision, both being necessary to invalidate the regulation, were:
(1) "This court finds that the regulation herein is laden with exceptions based on economic and political concerns."
(2) "The Rule is nevertheless fraught with arbitrary and capricious consequences. The simple reading of the Rule leads to the earlier acknowledged uneven enforcement even within a particular City block, much less the City as a whole. Furthermore, as previously discussed, the loopholes in this Rule effectively defeat the stated purpose of the Rule. It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule. For the aforementioned reasons, in the Article 78 branch of this action, The Portion Cap Rule is found to be arbitrary and capricious."
The Rest of the Story
The first key point in the decision is that the Department of Health and Mental Hygiene went beyond "regulating" and engaged in the process of "legislating." In other words, it made decisions not based purely on public health, but on economic and political concerns. Specifically, according to Tingling, it exempted convenience stores like 7-Eleven and Store 24 based on political, rather than health considerations. As I pointed out in my original post, there is no health justification for allowing a 7-Eleven to sell a 56-ounce Super Gigantic Gulp, while disallowing the cafe located right next door from selling an 18-ounce Moderate Gulp. Similarly, it makes no sense to ban monster sodas in delis if in those same restaurants, a person can order a humongous milk shake.
The second key point in the decision is that the regulation was arbitrary and capricious, meaning that there is no rational basis for its differential treatment of different types of beverages and different types of food establishments. For example, two establishments might be next door to each other but be treated differently in terms of what they can or cannot sell. I would add that even within a single establishment, one type of sugar-laden beverage could be served in large sizes while another might not. Moreover, the net effect of this arbitrary differential treatment is to gut the benefits of the regulation.
There is a direct analogy here to tobacco control. The only smoking bans that have been struck down by the courts are those which grant arbitrary exemptions to certain types of establishments based on political or economic concerns, rather than public health concerns. For example, a Rhode Island Superior Court struck down certain exemptions in a state smoking ban that treated similar establishments differentially based on arbitrary factors such as the number of employees and whether they sell pre-cooked or freshly cooked sausages.
The rest of the story is that very often, the law is not the enemy of public health protection (as some are treating it in the wake of this decision) but actually the friends of public health protection. By ensuring that decisions are based on health concerns, rather than purely economic or political ones, and by discouraging arbitrary and capricious differential treatment of similar establishments absent any rational basis, the law is a force that may help public health agencies and groups to craft policies that will actually be more effective in achieving their goals.
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