An Urban's Rural View

Finally, a public official who understands the debate over obesity isn't as simple as either side tries to make it. Chief Judge Jonathan Lippman of New York's Court of Appeals just poked holes in both sides' arguments.

He and five other judges of the state's highest court were hearing oral arguments on New York City's super-sized soda ban. A lower court had overturned the plan, saying it exceeded the Board of Health's powers; the city had appealed.

Judge Lippman withered lawyers for both the city and the beverage companies with armor-piercing questions.

If the city can limit sodas to 16-ounce containers, can it ban super-sized servings of French fries? Hamburgers? Hot dogs? "Where," the judge demanded of the city's lawyers, "do you draw the line?"

Any comfort this might have offered the soda-industry lawyers was short-lived. The city wasn't banning sodas, the judge noted; it was taking a measured approach. "Why," he asked, "is it such a great, terrible government intrusion to make regulations on how to package food?"

Reporters covering the 40-minute proceeding for both The New York Times (http://tiny.cc/…) and The Wall Street Journal (http://tiny.cc/…) came to the same conclusion: It was hard to tell from the questions which way Judge Lippman and his colleagues were leaning.

That's a compliment, your honors. Unlike many of the commentators, the judges seem to understand that obesity is not a black-and-white problem.

Contrary to what one side thinks, there probably has to be a role for government in dealing with obesity; it's not just a matter of individual choice. Taxpayers are on the hook for tens if not hundreds of billions in medical costs.

Contrary to what the other side thinks, what government can accomplish is limited. Voters are unwilling to embrace taxes, bans or other strong measures.

Even less drastic steps, like New York City's 16-ounce soda-size limit, are unpopular. The size limit is, at most, an inconvenience: Anyone who wants more than 16 ounces can buy more than one cup or bottle. Yet polls suggest 60% of New Yorkers dislike it. Interest groups representing everyone from labor-union members to Hispanics are campaigning against it.

Governments can educate and education matters, which is why battles over government-mandated product labeling are often bitter. But education may travel a long, uncertain road to success. Some will not notice the sign saying the Angus Chipotle BBQ Bacon burger is 800 calories. Others will simply not care.

And for labeling to be credible and fair, it must distinguish between items that have little nutritional value (think sodas) and items that can be bad for health when consumed in excess (think the Angus Chipotle BBQ Bacon burger).

It is, as Judge Lippman put it, a question of where you draw the line.

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