By Dr. Kate Scannell, Syndicated columnist
First published in Print: 03/17/2013
Last Monday, a judge canned New York City's revolutionary plan to prohibit the sale of large, high-caloric, sugar-sweetened drinks in restaurants, movie theaters, and other food venues -- just one day before the ban was supposed to take effect. The ruling dealt a blow to the city's Board of Health and Mayor Michael Bloomberg who were promoting the ban as a means to address the obesity epidemic.
Had the deliciously-named judge -- Milton Tingling -- not overturned the so-called "soda ban," today it would be permissible in establishments under the health department's purview to celebrate St. Pat's in Manhattan with pitchers of manhattans, but nothing larger than 16-ounce servings of sugary beverages.
This has stirred much debate about the proper reach of government into our private lives. Can -- and should -- the government regulate the sipping point of our thirst for sugar, the critical ounce beyond which our intake tips toward transgression?
On one hand, we elect our government to ... well, "govern" us. Government does not drop willy-nilly from the sky into padded thrones. We choose officials with whom we invest authority to promote our health and well-being. When our nation physically suffers -- from an obesity epidemic, a measles outbreak, a salmonella-tainted food supply -- we expect our government to take notice and dispatch public health troops to help remedy our predicament.
On the other hand, when we choose our governing officials, we also expect them to uphold our constitutional rights. The fundamental questions in today's pop quiz: How can you tell when government has overstepped its authority and trampled on our personal liberty? Where is the tipping point at which the government becomes injuriously overly-protective -- too forceful about vaccination requirements, too intrusive about our children's education, too controlling about the size of our Slurpee cups?
Mayor Bloomberg plans to appeal Tingling's ruling. He firmly believes that too many people are suffering too many debilitating, life-shortening diseases because of bad nutrition and obesity. And he is right about that.
Indeed, according to recent data from the Centers for Disease Control and Prevention (CDC), more than one-third of U.S. adults and 17 percent of children and adolescents are obese. Additionally, the medical care costs of obesity total about $147 billion. The U.S. Surgeon General attributes about 300,000 premature deaths each year to obesity, due to excessive burdens of heart disease, diabetes, lipid disorders, cancers and stroke.
Still, what's not so evident is Bloomberg's moral and legal authority to prevent his city's residents from making bad nutritional or lifestyle choices. Even if well-intentioned and promoting good core values for the Big Apple's health, Bloomberg's sweet-16 party line was bound to fizzle.
After all, America is the land of opportunity, paved with individual rights and freedoms. Die by the soda fountain or drink at the fountain of youth -- it's your choice, not the government's. Indeed, Bloomberg's opponents -- the American Beverage Association, the National Restaurant Association, and other business groups -- successfully argued that the ban was an illegal overreach that infringed upon consumers' personal liberty.
And yet ... sometimes it seems that such so-called personal liberties are not personal at all. Instead, they have the synthetic feel of generic "consumer choices," which have been narrowly defined and created by social and commercial interests.
I really don't experience a prodigious sense of freedom in certain restaurants when choosing among eight different soft drinks in containers large enough to shelter an albatross or two. I wonder, who chooses and benefits from my purported choices? How empowered am I to demand healthier food and beverage choices at my neighborhood restaurants and convenience stores?
Even some of the staunchest libertarians I know uphold a role for government enforcement of various consumer protection laws and regulations. Whether limiting the number of insects in citrus fruit juices or rodent hairs in the chocolate we consume, the government has long been involved in protecting us from unsavory, self-interested and careless business practices.
And, yet again, in the interest of public health, why not pass legislation limiting how many cigarettes you can smoke each day? The number of manhattans you drink? The time you're allowed in the boxing ring, or on the football field?
In the end, Bloomberg's attempt to strike a balance among so many competing claims created a regulation fraught with inconsistencies, exemptions and loopholes. In his quashing opinion, Tingling wrote that the regulation was "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 ... serve to gut the purpose of the rule." He also cited the ban's inconsistent application to restaurants and food venues regulated by the city's health department -- but not some vendors or convenience stores regulated by the state.
I'm looking forward to the appeals court hearing because I hope the next round of legal arguments will more fully address the profound ethical conflicts at the heart of the debate. I'm hoping they will illuminate the values and principles we choose to uphold in making hard decisions about soft drinks, in drawing the finest and brightest line between good government and genuine personal liberty.
Kate Scannell is a Bay Area physician and the author, most recently, of the novel "Flood Stage."
© 2013, Kate Scannell
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