Soft-drink law goes too far

June 7, 2012


There are things the law cannot do.

And if that seems a self-evident observation, well, you may want to think again in light of last week’s headlines out of New York City: It seems the mayor wants to ban the Big Gulp.

Specifically, Michael Bloomberg has announced his intention to pass a law restricting restaurants, movie theaters and sports arenas from selling sugary sodas in sizes larger than 16 fluid ounces. The ban, which would not affect supermarket sales, diet sodas or alcoholic beverages, represents NYC’s attempt to get a handle on the growing American problem of, well, growing Americans.

As the mayor told the New York Times, “Obesity is a nationwide problem, and all over the United States, public health officials are wringing their hands saying, ‘Oh, this is terrible.’ New York City is not about wringing your hands; it’s about doing something.”

He rejected the notion that the New York ban would limit consumer choice, noting that anyone who fears she will die of thirst without 32 ounces of Fanta can simply buy two sodas. The mayor was also dismissive of the argument that the ban encroaches upon people’s rights. As he put it on the “Today” show, “That is not exactly taking away your freedoms. It is not something the Founding Fathers fought for.”

To stand at any busy intersection and watch America go waddling by, drinking a latte and munching a doughnut en route to McDonald’s, is to understand the urgency of the problem that motivates the mayor. To read the statistics on diabetes, heart attacks, high blood pressure and other obesity-related illnesses is to have that understanding forcefully driven home. And yes, sugary sodas sold in containers that could double as mop buckets are certainly a contributor to that state of affairs. One cannot doubt the mayor’s good intentions.

His good sense, however, is another matter.

He proposes to solve the problem with a law only Big Brother could love. It represents nothing less than the usurpation of personal prerogatives, the enforced substitution of government standards for individual ones, the triumph of the Nanny State.

This is not, as Bloomberg has suggested, analogous to a smoking ban. Smoker’s exhaust is an annoyance and a health hazard to nonsmokers. The state has a compelling interest in clearing it from public spaces.

Nor is this, as others have suggested, analogous to San Francisco’s ban on Happy Meals. Children are vulnerable and not yet mature. The state has a compelling interest in protecting them from exploitation.

But what Bloomberg proposes has little to do with either of those things. He wishes to ban adults from behaviors that do not imperil anyone else’s health.

His attempt to use the law to that end suggests a fundamental misunderstanding of what the law can do. More, it reflects the belief that human progress can be legislated, that human beings can be perfected if only we write laws enough.

But laws do not perfect. They restrict. And restriction is something of which free people should always be skeptical. What’s next? A restriction on the number of doughnuts you can buy? A ration of candy and pizza?

No. You want to get adults to modify their behavior? Educate them. Persuade them. That worked with smoking, which fell from ubiquity to historic lows.

But Bloomberg prefers the heavy hammer of law. The Founders, he says, did not fight for 32-ounce sodas. But the Ninth and Tenth amendments suggest the Founders did intend to protect people’s right to make their own decisions, to live their lives free of unwarranted government interference, to be left the heck alone. The Founders understood something that sometimes escapes would-be reformers.

Namely, that there are things the law cannot do. And shouldn’t even try.

— Leonard Pitts Jr. is a columnist for the Miami Herald. He chats with readers from noon to 1 p.m. CDT each Wednesday on www.MiamiHerald.com.


CasualObserver 3 years, 1 month ago

How refreshing to finally read an editorial from Mr. Pitts that is not loaded with a bunch of race-baiting nonsense!

Ron Holzwarth 3 years, 1 month ago

Complaining about a ban on the public sale of larger sizes of beverages sounds so ridiculous to me.

From the article: "But what Bloomberg proposes has little to do with either of those things. He wishes to ban adults from behaviors that do not imperil anyone else’s health."

Sure, it won't imperil the health of others, except for the unsanitary problem of public urination, but it will hit the public in the pocketbook. Healthcare costs are much higher for overweight people, and since a lot of people do not have health insurance, the public will end up paying more either by higher costs at hospitals due to write-offs, or through publicly financed health care.

I don't think this will reach the level of the Supreme Court, but if it does the United States will become the laughing stock of the world for paying so much attention to such a trivial matter in the midst of all the other very serious problems that our nation and the world are facing.

Nero, tune up your fiddle!

The beverage industry is not at all likely to be wiling to finance a legal battle, because it is more profitable to sell two 8 ounce beverages than it is to sell one 16 ounce bottle. So, since the beverage industry is not likely to pay for a legal fight, exactly who is going to start hiring lawyers? There won't be any contingency fee arrangement for a matter such as this, and I tend to doubt that the ACLU will be interested in financing a legal battle that will be very expensive and of such dubious value.

cato_the_elder 3 years, 1 month ago

"Namely, that there are things the law cannot do. And shouldn’t even try."

Like the federal government attempting by mandate to order private citizens to purchase health insurance under threat of fine if they don't.

somedude20 3 years ago

No, Mitt was Gov of Mass, that is state, not Fed!

cato_the_elder 3 years ago

That's the point, genius. If you knew anything about constitutional law, you'd know that states are empowered to pass such laws, but the federal government isn't. It's called "Federalism," which is the bedrock philosophy on which our country was founded.

You might want to read up on it.

Orwell 3 years ago

This is what we call a distinction without a difference. If it's evil for a government to impose a requirement on an individual there's very little ethical basis to say it's OK if done by one level of government but not by another. If you stand solely on the Constitutional prohibition your argument is reduced to a claim that adoption of the federal mandate is malum prohibidum, but not malum in se.

Now tell us with a straight face you wouldn't have screamed "SOCIALISM!" if Kathleen Sebelius had gotten such a mandate through the Kansas Legislature. In other words, IOKIYAR.

Liberty275 3 years ago

"If it's evil for a government to impose a requirement on an individual there's very little ethical basis to say it's OK if done by one level of government but not by another."

Do you feel the same way about Arizona passing laws affecting people in their state illegally? The federal government is constitutionally bound to protect the border and when they can't should it not be OK for a state to handle the job?

Personally, I think they should make temporary work visas more plentiful so it will be easier for others to come here and work. Just stamp them in at the border and let the states weed out the criminals and send them back to the fed for exportation.

jafs 3 years ago

It's a very important distinction in our system, based on the difference between the scope of state and federal governments.

That difference is there by design of the founders, and it's not trivial.

cato_the_elder 3 years ago

That's irrelevant to my comment, but if what you say is accurate then Romney has presumably by now been educated as to the unconstitutionality of a federal mandate.

RoeDapple 3 years, 1 month ago

Motorcycle helmets come to mind . . .

jhawkinsf 3 years ago

Using helmet laws as an example, what is the compelling reason government might mandate the use of a helmet. It's this, should a rider suffer injuries so severe that their insurance likely would not cover the costs, we as a society (through the policies of the government) have decided that we will assume the costs. Because it is now the government that assumes substantial risk, the government may take actions to minimize that risk. We could, if we choose, require greater insurance coverage. Or we can mandate helmets. Or we may even just say that we'll tax everyone a small amount to cover the costs for the few individuals who have put the rest of us in financial risk. Something we have not chosen to do is to allow the rider to suffer the natural consequences of their actions, which would be to allow them to make their own decisions and then should they get hurt, receive treatment to the extent the coverage they chose would cover, with the government not assuming any additional risk. To the issue of soda. The country is suffering an epidemic of obesity. And soda is a contributing factor. May the government minimize it's risk when it comes to providing health care in the same way it might mandate helmets? Or should we just tax everyone a bit more? Or should we simply allow them to suffer the natural consequences of their actions? We've developed a patchwork of policies over the years. We bail some people out of some bad situations of their making while allowing others to suffer the consequences. We do help accident victims, we bail out those who have made bad financial decisions.
If it's a consistent policy anyone is after, I suggest they think fully of the ramifications.

jhawkinsf 3 years ago

Go back to your island, Liberty.

jonas_opines 3 years ago

Perhaps it would be clearer to you without your endlessly-repeating inner monologue of mememememememememe. I'm sure that gets in the way.

Liberty275 3 years ago

"Using helmet laws as an example, what is the compelling reason government might mandate the use of a helmet. It's this, should a rider suffer injuries so severe that their insurance likely would not cover the costs"

Using that standard, the state can mandate that you must wear a helmet while climbing mountains, bungee jumping or showering.

Liberty275 3 years ago

Mr Pitts, while your fervor is appreciated, Mr Bloomberg is only doing this for your benefit. He knows how much soda you should be allowed. You don't. So, hush up and just be glad that bloomberg thinks you should be allowed a 16 ounce cup.

LOL, Mr Pitts, your dog has turned and bitten you. You should always expect a dog to do that.

grammaddy 3 years ago

I'm with Bloomberg on this. I also think soda should be banned from being purchased with food stamps.When 1/2(probably more than that) the people on food stamps are ALSO receiving government subsidized health care, why should we allow parents to help destroy the children's teeth and expect the rest of us to pay for it? I have one who allows her kids"junk food" on a daily basis. These kids have had extensive dental work because of it.To me this borders on abuse/neglect. All of it paid for with a medical card.

Leslie Swearingen 3 years ago

Sorry, grammaddy, but you come across as simply bad tempered. Why all the anger?

deskboy04 3 years ago

Why would someone want such a big soft drink in the first place?

RoeDapple 3 years ago

Y'all mind if I light up an El Producto and sip on my Jack Daniel's while I contemplates the ramifications of this proposed ban?

Leslie Swearingen 3 years ago

Damn, I was going to have a rum and coke. Guess I'll just cut out the coke. Oh, wail...

Chris Ogle 3 years ago

".......noting that anyone who fears she will die of thirst without 32 ounces of Fanta can simply buy two sodas"

Whats up with the she stuff. Males get fat too.

ltownatrain 3 years ago

While you are correct in this statement, amazingly enough for once males aren't the most at risk group here like they seem to be for everything else. In terms of numbers women are generally more prone to obesity than men (something that can partially be attributed to pregnancy) and out number obese men. However, I agree that the statement was poorly worded because while women are at a greater risk of obesity than men it is not so great to generalize in the way the statement does.

beatrice 3 years ago

Funny thing about Fast and Furious is that it allowed the sale of guns without tacking them ... exactly what conservatives want. So why are you upset?

Orwell 3 years ago

– and not in our system of separation of powers, eh?

Liberty275 3 years ago

The real extremists don't care about your wallet or your bedroom.

jafs 3 years ago

If people were really smart enough to make their own decisions (meaning that they'll make good ones), then obesity and obesity related diseases wouldn't be so prevalent.

I'm not saying I agree with these bans - I prefer education for the most part.

Also, I'd like for folks to pay for their own decisions, and not have to pay higher insurance premiums because people in my pool make bad ones.

jhawkinsf 3 years ago

You prefer education, Jafs. At what point does common knowledge and common wisdom and common sense kick it? Wouldn't it be true if I said we already have that information available. Are you advocating for more education? I got the memo. So did you. Can't we assume that everyone else at least had the opportunity to get the information and if so, then if they don't have the information, then it's because they chose not to read the memo. Is there anyone in America above the age of 18 that doesn't know that a 48 oz. Big Gulp is not going to be good for you? Do we really need to spend resources to enlighten the public that super-sizing it is going to lead to negative consequences? Can't we just assume that they know, yet are making a bad choice anyway. After all, we all make some bad choices.

jafs 3 years ago

Some people are more aware and educated than other people.

And, see Lateralis' post - children should be well educated, don't you think?

Assuming as you know leads to...

If everybody has the information, and chooses to make bad decisions, then that's on them - I'd like to be sure they've got that information though.

jhawkinsf 3 years ago

"If everyone has the information, and chooses to make bad decisions, then it's on them"

Wow, Jafs, I would never expected that comment from you. Me, maybe, but not you. So if someone become addicted to drugs, it's on them. If someone goes without a helmet and sustains a head injury, it's on them. If someone smokes and then develops lung cancer, it's on them. As long as they're over 18. Hey, our positions are getting closer and closer. :-)

jafs 3 years ago


I've always said that people should be free to make bad decisions.

I'm just not as interested in you are in blaming/judging them for it.

And, I'm more interested in helping people make good decisions.

jhawkinsf 3 years ago

Ah, I think you're over generalizing my position. The fact is, I respect people's right to live their lives as they see fit. It's when they involve me, by reaching into my wallet, that I feel free to comment on their decisions and to judge what has brought them to this place. But as long as they don't ask anything of me, I am not one to judge or blame.

Leslie Swearingen 3 years ago

I believe it is lack of willpower. The individual wants something that tastes good, so instead of saying no to themselves, they go ahead and eat or drink.
There are some people that cannot mentally and emotionally deal with having a certain amount of pop or sweets at home and available. They are not going to be able to quit after just one ice cream bar or one candy bar. These people need to buy one serving at a time. Which you can do at the store. If you are able to deny yourself that extra slice of key lime pie then you should be grateful that you have that ability. Because all the information in the world is not going to help someone who doesn't.

jafs 3 years ago

Well, I agree that it's more complicated than simply having the information.

Human behavior is motivated by a number of factors, some conscious, others less so.

whats_going_on 3 years ago

no, most adults are NOT smart enough to make these decisions, hence the INSANE amount of obesity we have.

jafs 3 years ago

It's more complicated than that, I think.

Flap Doodle 3 years ago

Next step, corks on forks to keep people from jabbing themselves in the eye while eating.

pizzapete 3 years ago

That's a great idea, let's ban forks and straws, too. Has anyone studied the relationship between obesity and the invention of the fork? It's been my experience that people who use chopsticks are generally skinnier than their fork using cousins. Maybe we should just focus on making food more difficult to eat.

costello 3 years ago

I've thought about this issue a lot. The thing that concerns me is that some people think they know what's best as far as diet goes. There are people who "know" that saturated fat and cholesterol are bad for you. I don't happen to agree. People have been eating meat, butter, cream, and eggs for millenia. I happen to think those are better choses for me that, for example, a Healthy Choice frozen entre. If I've researched the issue and consulted my doctor, why should the foods I want to eat be banned or highly taxed?

No one's arguing (as far as I know) that the crap in a Big Gulp is good for you, but I worry about the slippery slope from extremely high sugar foods to other foods that we "know" are bad for us.

A more interesting question IMO is whether the ingredients in that Big Gulp have been subsidized by tax dollars. How much would the Big Gulp cost if the price of the corn to make the HFCS wasn't artificially lowered through subsidies?

ltownatrain 3 years ago

Well the problem here I think is the fact that drinking excessive amounts of soda can lead to obesity, which, in turn leads to higher medical costs that do have an affect on tax dollars. In other words you could say that the Big Gulp is subsidized by tax dollars as it can directly affect public health care costs. With that being said I still think the law is over-reaching as most things are ok for you in moderation so rather than banning them outright instead educate the public on the dangers they can present if over consumed. Also as someone who holds a PE and Nutrition degree I can tell you that cholesterol is not necessarily bad for you as some cholesterol actually has been shown to be healthy, the problem is that like many things people tend to go overboard and forget the whole idea of moderation.

Liberty275 3 years ago

In colorado you can buy munchies with pot in them.

BorderRat 3 years ago

I'll give up my big gulp when they pry it from my cold dead fingers.

pace 3 years ago

Just say no to soda pop. Really weird law but only convenient to the guy who can afford to buy two small drinks for usually twice the price of the large Every once in a while I buy the large (32 ounce) milk shake at the Sonic after 8 pm.. I take it home and split it with my family. Who in the world can drink two pounds of milk shake?

Liberty275 3 years ago

How about I just say no to unsolicited advice instead?

Milkshake night. Sounds like fun. I think we'll bring one back for the dogs tomorrow night. The snarling will be delightful.

Myself, I won't touch any type of shake except a cherry bomb from Zs. That's some good stuff right there.

Does Lawrence have any place to get gelato?

bevy 3 years ago

Hey Liberty, last time I knew the Mirth Cafe down at 8th and New Hampshire sold gelato made onsite. Haven't been there in a long while, but I used to work a couple doors down.

Liberty275 3 years ago

Thank you. We'll check it out this weekend.

somedude20 3 years ago

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Ron Holzwarth 3 years ago

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somedude20 3 years ago

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rockchalker52 3 years ago

I don't like this one, Bloomby. It's gonna blow up on ya.

beatrice 3 years ago

What we should be doing is teaching nutrition in our schools, along with basic cooking skills. Sadly, too few people cook anymore, they just heat packaged goods.

beatrice 3 years ago

We used to teach these things in school, back on the '50s -- you know, that time conservatives keep dreaming about ... when unions were strong and the top tax rate was 90%.

Besides, what is wrong with teaching things in schools that would benefit society?

somedude20 3 years ago

But Al Gore gave you the Internet and without that, how would you exercise your hands and wrists?

Pastor_Bedtime 3 years ago

Another nanny-state program from a presumptuous, overbearing government.

tbaker 3 years ago

This is a great example of how liberal-progressives despise the concept of individual liberty. If a traditional American doesn't like something, they don't buy it. If a liberal-progressive doesn't like something, they want it banned for everybody. The whole idea rests on the arrogant presumption that ordinary people simply cannot navigate the impenetrable mysteries of daily life without the guiding hand of some so-called government expert there to help them; that people should have the liberty to think and act for themselves (unless of course they want an abortion)

They are turning the entire country into a giant assisted living facility.

pace 3 years ago

I only think people who lump all people into two simplistic groups and make silly remarks about one of the imagined groups as stupid.

tbaker 3 years ago

"It is not the function of our government to keep the citizens from falling into error; it is the function of the citizens to keep government from falling into error." - Fred Moore Vinson, Chief Justice, U.S. Supreme Court, in American Communications Association v. Douds, 339 U.S. 382, 1950

just_another_bozo_on_this_bus 3 years ago

Since when is Bloomberg a "liberal-progressive?"

just_another_bozo_on_this_bus 3 years ago

"This is a great example of how liberal-progressives"

And if this is such a great example, why is Pitts, who is definitely a "liberal-progressive," criticizing it?

yourworstnightmare 3 years ago

Bloomberg jumped the gun, here.

Just wait until the insurance actuaries get involved, and find that soft drink consumption is tightly correlated with type II diabetes. They won't stop you from drinking massive soft drinks, but they will raise your insurance premiums.

It is the future.

Armored_One 3 years ago

When Escape from LA came out, I got a bit of a chuckle at the opening sequence, where it lists the things that are illegal... like red meat, smoking and a whole list of other things...

It's not quite so comical now that laws are being passed that are headed in exactly that direction...

Liberty275 3 years ago

Thank goodness he didn't say anything about "back"! Without sufficient sugary dranks, baby may not have it much longer. You other brothers can't deny.

Flap Doodle 3 years ago

I wish I'd have had a big cup of a tasty beverage while watching the news Tuesday evening. Good news makes me thirsty.

whats_going_on 3 years ago

maybe if people would cease to keep making themselves obese, we wouldn't need to have to worry? Everyone screams "personal responsibility...yadayadayada"...but it just doesn't work that way and people's lack of responsibility is driving up everyone elses health care costs, etc.

whats_going_on 3 years ago

and I swear if someone starts the "some people can't help it" I will reach though the computer and smack you. Don't even go there.

Liberty275 3 years ago

How will the cashier know if you have coke or diet coke in you 48 oz JumboGulp? Is she going to need to taste it before she can sell it to you?

Bloomberg's law is idiocy. If I buy a 32 ounce coke with breakfast, that lasts me until lunch and by then is mostly just water. Does this clown think everyone has time to go get a 16 ounce drink of anything just any time of day? This is the garbage that makes America and Americans stupid and is a blatantly dumb encroachment on our rights.

Nose out Mayor Bonehead.

just_another_bozo_on_this_bus 3 years ago

" If I buy a 32 ounce coke with breakfast,"

and you do it on a regular basis, it indicates a strong predilection towards maladaptive behavior. Bottoms up.

Liberty275 3 years ago

It depends on the voice at the drive through. It has to be a girl asking and she must have a pretty voice. 99% of the time it's always the 16 ounce size because it's hard to for anyone to sound pretty at 7am. I'd say I have a predilection for girls with pretty voices.

Oh, also if it's the pretty blond that comes and goes from the east sonic. I'll buy whatever she suggests if I know it's her on the speaker.

So we have established predilections for pretty voices and pretty blondes.

Tell me doctor bozo, have I maladaptated? Is it wrong that I have should have the freedom as a non-felon US Citizen to decide for any reason to buy any size of any drink I can pay for? What's your predilection? Freedom or party-line-puke?

I'll live my own life and you can make mumbo jumbo with that, doc. :-)

And no, I'm not paying you.

Spelling police - maladaptated. Leave it alone.

just_another_bozo_on_this_bus 3 years ago

I'd say your behavior is as shallow as your ideology.

Liberty275 3 years ago

I'd say you are a coward that needs a nanny to protect you.

just_another_bozo_on_this_bus 3 years ago

You're the one who drinks the 32 oz sodas, not me.

Liberty275 3 years ago


Yankees... Coke. That's what I drink. I don't drink soda.

beatrice 3 years ago

I do not agree with this proposal. However, I do find the politicizing of health practices quite odd. Maybe Obama will win reelection because most conservatives will die from heart failure before then.

Flap Doodle 3 years ago

Does the New Party endorse this sort of government interference in our lives?

Liberty275 3 years ago

Of course. Where do you think obama developed his nanny-state mentality?

bevy 3 years ago

It doesn't help matters that drink sizes have exploded. At Casey's, the "small" drink is 32 oz! I also think the introduction of HFCS (High Fructose Corn Syrup) into EVERYTHING we buy, has had a huge impact on obesity. Some studies suggest consuming it makes you want to eat more. I am trying to move my family towards a healthier diet with whole grains, fresh fruits and veggies, and little to no fast food. It's a tough change to make - and I already know how to cook. The fact is there are generations of families (both on and off welfare) where nobody knows how to cook. They have lived the "heat N eat" lifestyle for so long, they don't know any differently. Education could help, but personal motivation is required.

jafs 3 years ago

Good for you!

Once you make the transition, you'll find it easier to maintain - also you'll feel a lot better, and probably lose weight, as well as preventing the onset of type 2 diabetes, and other nutrition related diseases.

just_another_bozo_on_this_bus 3 years ago

If everyone on the planet died tomorrow, all expenses for everything would stop, forever.

Are you ready to sign a 7-billion-way suicide pact? There's serious money to be saved!!!

jafs 3 years ago

Still waiting for a citation, one from this country.

If smoking killed everybody that quickly, you might be right. But many smokers can live longer than that - cigarette companies want them to buy more cigarettes, you know.

Last time I checked, 62 was the earliest one could get SS benefits (reduced ones) - how many folks have made it to 102-112 that you know of?

Obesity is similar - you don't just die quickly from being overweight - you probably get diabetes, and a host of other issues, all of which cost money to diagnose and treat.

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