An Urban's Rural View

So big sodas are legal in the Big Apple after all.

Restaurants, soda makers and foes of the nanny state are celebrating a judge's decision to quash the city's ban on sugary sodas served in containers holding more than 16 ounces. Mayor Michael Bloomberg and the city's Department of Health are licking their wounds, vowing to appeal.

How big a setback is this ruling for the anti-obesity struggle? Could caps on soda size re-emerge from the ashes? Does the decision make even sterner steps against sodas unlikely?

One of the two pillars of Judge Milton Tingling's 36-page opinion (http://tiny.cc/…) is built on fine points of state administrative law. According to Judge Tingling, only the people's elected representatives could impose a cap on soda size. The health department's bureaucrats overreached their authority.

By implication, a ban enacted by the city council or the state legislature would give the judge less trouble. But it would have to be different from the one the city tried to impose, because in the second pillar of his opinion the judge also declared the city's ban "arbitrary and capricious."

I'm no expert on New York law but I'd wager that if an appeals court looks askance at any part of Judge Tingling's opinion, it would be this. Exception could be taken to each of the reasons he offers for his declaration.

-- It's arbitrary and capricious, the judge said, for a McDonald's to be banned from serving oversized sodas while the 7-11 next store is allowed to continue selling its famous Big Gulps. But is it? There's no Big Gulp loophole in the Big Soda ban. Convenience stores are off the hook because they're regulated by the state in New York, whereas restaurants are regulated by the city. If anything is arbitrary and capricious it isn't the ban, it's the regulatory patchwork.

-- It's arbitrary and capricious, according to the judge, that the size cap applies to sugary sodas but not to sugary lattes and milkshakes, even when the milk-based drinks have more sugar and calories. But is it, really? Why shouldn't drinks with nutritional value be allowed more latitude than those that are all empty calories?

-- It's arbitrary and capricious, to Judge Tingling's way of thinking, to limit the container size to 16 ounces but allow the consumer to buy more than one 16-ounce drink. It defeats the purpose of the regulation, the judge opined. But, again, does it? The health department thought the inconvenience of having to buy more than one soda would discourage at least some people from drinking more than 16 ounces at a time.

Rather than criticize this as a loophole, the judge might have praised it as an attempt to avoid intruding too deeply in a citizen's personal choice. If you really want 32 ounces, you can still have it, but at least some people will decide 16 is enough. To call this arbitrary and capricious, as the judge does, is, well, arbitrary and capricious.

It seems, in any event, that the judge's decision is a narrow one that leaves anti-obesity crusaders plenty of room for maneuver. Even if the decision is upheld on appeal the city council could pass a similar but more sweeping ban that would withstand judicial scrutiny. The city council or state legislature could even decide to impose an excise tax on sodas without violating the logic of Judge Tingling's decision.

The ruling, then, is more of a public-relations setback than a legal one. A far more serious problem for those who want government to do something about obesity is the loss of the driving force behind New York City's anti-obesity campaign, Mayor Michael Bloomberg.

It's been at his instigation that the city has banned trans-fats, required calorie counts on menus and now tried to limit the serving size of soda. Bloomberg's term expires in a few months and it isn't at all clear his successors will share his zeal for this campaign.