Ding Dong, the Soda Ban Is Dead

Ha! A heroic judge has rescued New York from Nanny Bloomberg’s attack on large sodas. Michael Moynihan rejoices—but wonders why his friends aren’t cheering with him.

Richard Drew/AP

I don’t drink “large sugary drinks.” Not because I think they'll make me fat—they wouldn’t, because I’m clever enough not to drink five in one sitting—but because I’m afflicted with type 1 diabetes (a result of defective genes, it should be said).

Nevertheless, as your intrepid reporter and public servant, I was willing to risk the blood-sugar spikes and potential hospitalization to help New Yorkers navigate the thicket of weird regulations set forth by New York City’s billionaire schoolmarm, Mayor Michael Bloomberg. In September the city’s Department of Health and Mental Hygiene (nothing Orwellian about that name) decided, for the sake of the chubby children, to forbid the sale of sugary drinks in containers larger than 16 ounces. The ban was to go into effect today.

But the wonderfully named New York Supreme Court Judge Milton Tingling interceded on my behalf (isn’t this what public officials are supposed to do?), ruling that the large-soda ban—which didn’t apply to all drinks or all retailers—was “capricious” and “arbitrary.” Such bans were beyond the remit of the health department, Tingling wrote, and the law “would not only violate the separation of powers doctrine, it would eviscerate it.”

Right on, Judge Tingling.

Lest you think that this were merely a victory for Big Soda (remember to append the word "big" to all industries of which you disapprove), do note that the suit was filed by the Hispanic chamber of commerce, the Korean-American Grocers Association, the Teamsters, and various restaurant and beverage-company groups and was later joined by the NAACP and the Hispanic Federation. Bloomberg’s bottle ban, the groups argued, would do little to curb the obesity problem and do great harm to local businesses, many of them minority-owned.

As Tingling observed, the law’s byzantine list of exceptions and exemptions meant, for instance, that one could no longer buy a two-liter bottle of soda with pizza delivery, but 7-Eleven’s Super Big Gulp and various calorie-rich drinks made with more than 50 percent milk (or soy milk) were just fine. Dunkin’ Donuts, the prole coffee shop, produced a flier explaining the tasks customers now must perform themselves. If certain conditions applied, customers would have to add their own heapings of sugar and “your own flavor swirl.” A small, if nonsensical, price to pay for America to stop being so grotesquely fat.

In a press conference following Tingling’s ruling, Bloomberg, with his trademark surliness, announced that he would appeal the decision, repeating his frequent claim that, in the good old days, one could only buy soda in a six-ounce bottle. It’s worth pointing out, because his administration so frequently cites this example, that Coca-Cola changed its bottle size to 12 ounces in 1954 (and also added a 22-ounce “family size” container), when it was losing market share to Pepsi—which had introduced a 12-ounce bottle in the early 1930s. In other words, customer demand increased the size of soda bottles.

Bloomberg also made glancing reference to his crowning achievement in the war on waistlines: the requirement that restaurants—but again, not all restaurants—provide calorie counts on menus, while curiously avoiding judgment on the program's effectiveness. As The New York Times reported in 2009, a joint study from NYU and Yale University found “that people had, in fact, ordered slightly more calories than the typical customer had before the labeling law went into effect, in July 2008.” A 2011 Duke University study of labeling in Seattle, according to Bloomberg News(!), found “no significant differences in food purchasing behavior.”

Long ago, when Mayor Bloomberg banned smoking in bars and restaurants, there was a suggestion, considered absurd at the time, that such interventions in the name of public health could send the city sliding down a slippery slope. How right this was, with our pasha of priggishness since taking aim at the availability of pain medicine in city hospitals (“so you didn’t get enough painkillers, and you did have to suffer a little bit”), loud headphones, salty foods, trans fats, baby formula, and food trucks. In 2011 CBS New York reported that internal health-department guidelines “recommended” that “cookies should not be served when there is a celebration cake at an agency gathering” and suggested “cutting bagels and muffins into halves or quarters and serving air-popped popcorn during agency meetings and events.”

We all must live longer, to suffer through our boring and risk-free future.

The most distressing aspect of Bloomberg’s ever-expanding nannyism is the number of allies he has enlisted to his cause. After the Tingling ruling, I was forwarded an email from Bruce Weinstein, an “author and expert on the ethics of selling and eating junk food,” who offered his talking-head services—and a list of “talking points”—on the overturned ban. If bookers were interested, he would harangue radio and television audiences on how fat people lack ethics: “It is unethical for people to treat their bodies like garbage dumps.” (Join me in the rallying cry: my landfill, my choice!)

Walk into any bar in Manhattan’s Lower East Side or in the more adult hipster enclaves of Brooklyn, and you will inevitably hear lamentations for a lost New York, when the streets were garbage strewn, dangerous, and authentic. When former mayor Rudy Giuliani neutered old Times Square—zoning out the peep shows, pushing out the streetwalkers, bankrupting the squeegee men—he was routinely accused of “Disney-fying” Manhattan. In its “21 Questions” feature, New York magazine always asks respondents if they prefer “the old Times Square or the new Times Square.” (Rarely does the subject answer incorrectly.)

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But when I discuss Bloomberg’s unremitting war on personal vice with friends, those New York veterans who have traded cigarettes and ramen noodles for hot yoga and Palestinian figs from the Park Slope Food Coop, they explain that the poor fatties can’t help themselves without the intervention of city hall. The “lost” New York they romanticize is one of cheap drugs, sleazy porn theaters, and squatters—punk-rock danger. Poor folks guzzling 17 ounces of Dr Pepper is something else entirely.

Thankfully, Nanny Bloomberg’s righteous reign is almost over. And just in time. Asked recently if the government should force Americans to exercise, Bloomberg responded: “Probably not.” There’s that qualifier, suggesting he could be persuaded otherwise. Because as the late Christopher Hitchens said in 2004, long before the true megalomania had taken hold, “Who knows what goes on in the tiny, constipated chambers of his mind?”