Fuss rather than fizz. New York court’s reversal of ‘soda bucket ban’ only the first shot.

The New York State Supreme Court, in what I understand to be a decision of the interlocutory type and subject to appeal, has held as unconstitutional (vis-a-vis the NY Constitution, that is) the NY City Board of Health’s decision to limit the size of sugary soft drinks or ‘sodas’ sold in restaurants, movie theaters, stadiums and arenas at 16 ounces a cup. That’s 473 millilitres, slightly less than half a litre (500 millilitres or 50 cl) or roughly 100 ml less than what in the UK would be a pint (568 ml).  473 millilitres therefore would be the new maximum size – I have no experience with the current standard size however I understand that by default it must be much bigger than what is now being proposed. I remember some years back reading about a lawsuit in the US against Chrysler, whose new Voyager people carrier had cup holders which could not hold a one litre soda cup (one assumes this was a suit of the rather desperate type however one never knows).

Justice Milton Tingling essentially held that the Board’s decision trespasses on the powers of the legislative body, the City Council. Separation of powers, therefore, or Agency /delegation of powers, has decided this first shot in the soda war. Justice Tingling mentioned specifically that the judgment is not about the obesity epidemic, if any, and /or the contribution of soda drinks to same (he does remark that infringement of the separation of powers ‘(…) has the potential to be more troubling than sugar sweetened beverages’).

How far a State should go in regulating the unhealthy habits of its citisens is very much of the essence in this case – as is the importance for New York to somehow establish the link between practices targeted, and unwanted consequences on people’s health, the national health service, and the public purse. In the EU, this would create interesting musing under the precautionary principle (see also EFTA’s widely criticised Philip Morris judgment, which I have previously referred to). Appeal has already been announced.

Geert.

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