By Schuyler Velasco and Laurie Belsie
Christian Science Monitor
A Manhattan judge took the fizz out of New York City's attempt to ban large sugary beverages at restaurants, handing the soft drink and fast food industries a major victory and sending a pointed message to the mayor and the city's board of health about regulatory overreach.
But the rejection of New York's big soda ban is unlikely to quell the calls for food and beverage companies to address the negative health effects of their offerings. From the successful campaign against trans fats to San Francisco's ban on toys in McDonald's Happy Meals to First Lady Michelle Obama's campaign against childhood obesity, makers of junk foods face a widening public-relations battle.
After New York proposed its groundbreaking ban last year, the mayor of Cambridge, Mass., weighed in on the desirability of doing the same in her city. New York's ban – which would have fined restaurants serving sugary beverages in cups bigger than 16 ounces – would have been a highly visible symbol of progress for that movement.
"This ban sends a signal to large soda manufacturers and fast food chains that 'anything does not go,' " wrote Nancy Neiman Auerbach, a professor who studies food politics at Scripps College in Los Angeles, in an e-mail before the court's verdict. "That is, there are and should be limits to the externalizing of costs that get borne by the public in order to reduce costs and increase profitability of large producers."
Instead, a group led by the American Beverage Association sued the city, and New York State Supreme Court Justice Milton Tingling blocked the ban. The court's rejection cheered the rule's opponents, including soft-drink manufacturers, the National Restaurant Association, and many New York residents concerned about the spread of government regulation into areas once the preserve of individual choice.
"The court’s decision upholds a principle that most of us already believe in – freedom of choice. Individuals are the ones with the power to choose what foods and beverages are right for them, and no one-size-fits-all policy can or should infringe on that decision, no matter how well-intentioned it may be," the American Beverage Association, which represents the nonalcoholic beverage industry, said in a statement.
Opponents of the ban also took issue with the potential impact on small businesses, which would have to incur the costs of ordering smaller cups or changing their menus, for example. The NAACP and Hispanic Federation supported the ABA lawsuit, saying in court documents that "this sweeping regulation will no doubt burden and disproportionally impact minority-owned businesses at a time when these businesses can least afford it."
"It seems to me very clear that the big losers here are not the small businesses, most of which do not specialize in mega-drinks, which tend to be the purview of fast food chains," Ms. Aurbach argues. "Arguments have tended to focus on how these laws will unfairly impact the little guy. This tends to be an effective way to gain public sympathy. This is not unlike the claim that farm subsidies mostly go to support small family farms who would go bankrupt if the Farm Bill were significantly modified. Nothing could be further from the truth."