Mayor Bloomberg is not the food boss of New York City residence after all. Just a day before soda-is-illegal-if-too-much-of-it-is-sold became the law of the land, the state Supreme Court struck it down.
According to Supreme Court Judge Milton Tingling, the soda ban—aka “portion cap rule” which forbade soft drinks in large 16oz portions—had two major problems. The first problem was that the law was made through executive fiat meaning it had no legislative consent. The city health department approved of the law which came out of mayor Bloomberg’s office however the health department is also part of the mayors’ office, so who are we kidding?
The second problem, according to the court, was the “arbitrary and capricious” application. The city health department is given a great bit of latitude in regulating food and beverage but it is confined by legislative parameters and just can’t make things up. It doesn’t have to wait for legislative action if some “thing” poses an “imminent threat”. If the department deems 16oz of soda a health threat and then gives itself jurisdiction without legislative action, then why exempt grocery or convenient chain stores that sell in liters?
The court reasoned this undermines the effectiveness of the ban and also a pressing need to act without legislative approval. If large sodas are unhealthy what does it matter where it is brought? To allow over 16oz in one type of business but not in another makes the rule "arbitrary and capricious".
But because Bloomberg cares so much he has little need for separation of powers. At a press conference Bloomberg stated “I got to defend my children and you and everybody else and do what’s right to save lives...” because he’s not only the boss but another dad to the cities children and a savior to the rest of NYC. This kind of responsibility requires power beyond public consent because if people ingest unhealthy products, only the rule of law can stop them, presumably. This exemplifies nanny-state governance.
He went on to say “Obesity kills, there is no question about it” and soda is responsible, or maybe one of the many things responsible. The mayor could move on to ban just about anything at all even if the danger is tangential or made up and he doesn’t need the approval of those elected to represent the citizens.
What would stop the mayor from banning hot dogs at Yankee Stadium? Certainly an argument can be made this contributes to obesity too. Having established he has the power to ban 16oz soda on a whim he could strike at this too along with a whole host of other eating pleasures he feels are unhealthy just because he feels they’re unhealthy.
So over reaching government was stopped in its tracks because that is the way the system works. Bloomberg demonstrated that when government fashions itself to have the power over our own better judgment it can do just about anything it pleases in the name of our own good.
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