Search Results for ‘bloomberg soda’

New York high court confirms Bloomberg soda ban illegal

In a 4-2 decision, New York’s highest court agreed with two lower courts that New York City’s attempted ban on sugary drink portions over 16 ounces exceeded the powers of the city’s Department of Health. [Bloomberg News coverage]

That’s exactly in line with what I wrote at earlier stages of the case. At the time, some national commentators did not seem to have checked out the actual reasoning of Judge Milton Tingling’s decision, which rested squarely on a distinctive 1987 New York precedent called Boreali v. Axelrod which had struck down the state health department’s attempt to regulate smoking in public places as beyond its properly delegated authority. The soda case was (as they say) on all fours with Boreali, and although the Court of Appeals could have overturned Boreali, as some academics urged, or found grounds to dodge its effect, as the two dissenters did, the court instead chose to apply the precedent as it stood. That confirms that the Bloomberg-appointed Board of Health, in its eagerness to assert powers not rightly its own, had casually broken the law.

One of the two dissenters was Chief Judge Jonathan Lippman, the latest of many indications that he is inclined to pull the Court of Appeals away from many of the positions and habits that have given it a centrist reputation among state courts.

Speech to ABA on nanny state and Bloomberg soda ban

You can watch here (earlier). Related videos, including those of the other panelists, at the American Bar Association site.

Meanwhile, even former enthusiasts are beginning to give up on the “food deserttheory — opening a supermarket nearby does little to change unhealthy diet habits. So guess what’s next? Yep, calls for more and stronger intervention [Ann Althouse].

Appeals court swats down Bloomberg soda ban

The new four-judge decision is unanimous, which means every judge to consider the matter has now agreed that the NYC Department of Health overstepped its legal powers. And they’re right, as I explain here at Cato. Earlier here, here, here, etc.

One person who presumably had not expected today’s result is Emily Bazelon at Slate, who has claimed that Judge Milton Tingling’s trial-court decision was somehow a venture into conservative activism. None of the New York appellate judges heard from today give evidence of sharing that view.

Judge strikes down Bloomberg soda ban, cont’d

My new op-ed at the Daily Caller is their “most shared” this morning. Excerpt:

On Monday, Judge Tingling struck down the soda ban in a sweeping opinion that does everything but hand Mayor Poppins his umbrella and carpetbag. This wasn’t just a temporary restraining order putting the regulation on hold for a few weeks. The judge struck down the ban permanently both on the merits (“fraught with arbitrary and capricious consequences”) and as overstepping the rightful legal powers of the New York City Department of Health…

[For] the mayor and his public health crew… the biggest reproach in the decision isn’t in being found to have gotten the facts wrong, it’s being found to have violated the law.

And if anyone is expected to know and play by the rules, it’s a nanny.

Michael Grynbaum, New York Times:

[Bloomberg’s] administration seemed caught off guard by the decision. Before the judge ruled, the mayor had called for the soda limits to be adopted by cities around the globe; he now faces the possibility that one of his most cherished endeavors will not come to fruition before he leaves office, if ever. …

The measure was already broadly unpopular: In a New York Times poll conducted last August, 60 percent of city residents said it was a bad idea for the Bloomberg administration to pass the limits…

Ross Sandler, a professor at New York Law School, said city laws deemed “arbitrary and capricious” had frequently been reinstated upon appeal.

The Times also profiles Judge Tingling and reports on reactions by New Yorkers in the street (not favorable toward the ban). Coverage from yesterday, including my podcast with Cato’s Caleb Brown, here. NYU’s Rick Hills, as often happens, takes a different view. (& Point of Law; and more) Update: as of March 15 my Daily Caller piece has been recommended on Facebook 3,700 times, surely a record for me.

Bloomberg soda follies, cont’d

The mayor is urging New York state to adopt his city’s ban on large sugary drinks [NY Daily News, CBS New York] And under recently announced details, the city’s ban will prohibit the buying of 2-liter sodas with pizza deliveries and the buying of family pitchers at kid’s birthday party venues, even though such orders are commonly split among several customers in a party [New York Post]:

Typically, a pizzeria charges $3 for a 2-liter bottle of Coke. But under the ban, customers would have to buy six 12-ounce cans at a total cost of $7.50 to get an equivalent amount of soda.

“I really feel bad for the customers,” said Lupe Balbuena of World Pie in Carroll Gardens, Brooklyn.

It will also restrict the offering of mixers as part of bottle service in nightclubs.

Bloomberg’s Soda Grab and the Separation of Powers

[cross-posted from Cato at Liberty]

I’m at the Commentary magazine blog this morning with a second bite (second gulp?) at the NYC soda ban ruling. This time I look at the separation-of-powers angle, and at the way Judge Milton Tingling, Jr.’s ruling addressed the overgrown ambitions of some in the “public health” community to control more and more of life. Although the decision did not forestall the New York City Council from adopting nanny-state regulations in the future should it see fit, I argue,

…yesterday’s decision should cheer us for other reasons. It holds the Gotham administration accountable for overstepping the separation of powers, an important principle in the safeguarding of liberty. (In a profile of Judge Tingling, the New York Times notes that he’s been skeptical of government claims to power in a number of other cases as well.)

Under separation of powers as generally understood at the time of the Framers, an executive agency cannot enact new legislation on its own, that being a role constitutionally reserved for the legislature. Especially during the Progressive Era and New Deal, these barriers were eroded as administrative agencies claimed a power to issue regulations that looked more and more like traditional legislation, under powers deemed to have been delegated by the legislature. Still, there are some limits, both under the U.S. Constitution and in New York (which under a 1987 case called Boreali v. Axelrod applies its own, quirky standard in evaluating whether a regulation oversteps the separation of powers.) And those limits to delegation were at the heart of the soda case.

The New York City Health Department was asserting a breathtakingly broad definition of its powers, on the grounds that successive city charters give it sweeping authority to address all matters relating to health. Under the interpretation advanced by Bloomberg’s lawyers, this vague charter language would empower the department to issue pretty much whatever diktats it pleases for New Yorkers to obey on any topic somehow related to advancing health….

Looking at cases where the agency’s authority to act had been upheld, the judge noted instances of emergencies, particularly those relating to epidemics of contagious or communicable diseases. … In that legal finding is the germ of a much-needed rebuke to some actors in the public-health movement, who have taken the centuries of moral and practical authority originally built up by their colleagues from the fight against epidemic infectious disease and dubiously sought to apply it to a dozen other health-related questions of life and lifestyle, including not only doughnuts, soft drinks and salty snacks but also such supposed “disease vectors” as gun ownership and overreliance on cars for commuting.

Read the whole thing at Commentary here. Background in yesterday’s post here (& Alex Adrianson, Heritage).

Judge to Bloomberg: unhand that soda

In a sweeping decision, trial court judge Milton Tingling has struck down the ban on sugary drinks decreed by the New York City Department of Health, which had been scheduled to go into effect tomorrow. I discuss the ruling in a Cato podcast above. I’m also quoted by Jillian Kay Melchior at National Review Online:

It was a sweeping ruling, because the judge said not only was the ban arbitrary and capricious, but it also went beyond the public-health agency’s powers under the statute. It meant that, even if Bloomberg went back and got a better factual justification for it, he had no legal right to do it. The agency just plain lacked the power. It means that the powers that public-health agencies claim because of emergency dangers like a raging epidemic — they don’t get to rule by dictate about other elements of our life that are not emergencies.

Other coverage: New York Post, CBS New York, Moin Yahya, David Henderson. As the law’s effective date approached, city residents were learning more about its unpleasant effects on such everyday activities as ordering beverages to split with pizza delivery, mixers at nightclubs, table pitchers to serve kids’ birthday parties, and, most recently, coffee, the subject of a virally famous poster from the local Dunkin’ Donuts operation.

P.S. And now I’ve got a Daily Caller piece out on the decision. See follow-up post here.

Bloomberg’s soda Waterloo?

General derision continues from many quarters, if not all, for Mayor Bloomberg’s soda-snatch scheme. “Just don’t get caught with the weed AND a 24 ounce Coke” [NYT comment via John Elwood, Volokh] Baylen Linnekin finds it “just part of a typical news cycle in the Bloombergosphere” and points out that “The unsweetened juice of an apple — that symbol of New York City — contains at a minimum exactly the same number of grams of sugar per ounce (3.25 g) as Coca-Cola (3.25 g).” Ira Stoll suspects Bloomberg has surrounded himself overmuch with yes-men. More: George Will (“‘The essence of contemporary liberalism,’ ‘preposterous,’ ‘sinister'”)

Bloomberg’s soda grab: reactions

The NYC mayor’s plan to limit sizes of sweetened drinks meets with a hail of dead cats from commentators:

  • “Bloomberg is right when he says there will still be lots of opportunities for New Yorkers to consume large quantities of high-calorie drinks, which means he does not even have a sound paternalistic justification for his meddling. … it is patently absurd for Bloomberg to claim he is not limiting freedom when he uses force to stop people from doing something that violate no one’s rights.” [Jacob Sullum]
  • “Trans-fats –- we were told by New York City Mayor Bloomberg –- are an exceptional case because even the smallest intake hurts the human body. Ditto, it would seem, of salt and alcohol. But we all knew he wouldn’t stop there. And he didn’t.” [Stephen Richer, WLF]
  • “It’s well known, for example, that the heaviest consumers of sugary drinks are adolescent males — who also tend to be the thinnest and most active members of the population. (‘Unfortunately, increasing sugar consumption [is] unlikely to make anyone thinner, younger—or male,’ [researcher Adam] Drenowski notes.)” [“Bloomberg’s Attack On Big Soda Lacks One Thing: Scientific Evidence,” Daniel Fisher, Forbes]
  • “[Bloomberg’s] sarcasm about the inconvenience of buying two sodas is ironic, since that inconvenience is one thing that he’s counting on to drive the success of his plan.” [Mark White, Economics and Ethics]
  • “I’m afraid this proposal is targeted more at class than obesity.” — Cornell economist David Just, quoted on NPR.
  • “And speaking of the mayor’s commitment to freedom, who exactly is going to impose this sweeping ban? Not the people, in a referendum. Not a constitutional convention. Not even the city council. This ‘far-reaching ban,’ as the Times describes it, will be imposed on 8 million free citizens of New York by the city’s unelected Board of Health, all of whose members are appointed by . . . the mayor.” [David Boaz, Cato]
  • And the inevitable Twitter hashtag, #BloombergMovieTitles: The Appropriately Sized Lebowski, I Know What You Ate Last Summer, The Taking of Pepsi One Two Three, There Will Be Blood Sugar Tests, Diet! Diet! My Darling, Star Trek II: The Wrath of Flan, Sixteen Carrots, No Country for Old Menus, and All That Bloomberg Allows (h/t @JoshGreenman, @bethanyshondark, @AnthonyBialy, @robsolo, @RobGeorge, @JoshGreenman again, @KerryPicket, @Fausta, and @Ericatwitts).