Bloomberg’s big-soda ban is still effective!

I am of two minds on the court decision Monday striking down the New York City Board of Health's ban on the sale of sugary drinks over 16 ounces one day before it was to kick in. I applaud both the judge's ruling and the mayor's  resolve.

The ban was declared "arbitrary and capricious" by New York State Supreme Court Judge Milton Tingling, whose ruling called attention to the ban's loopholes, which "effectively defeat the stated purpose of the Rule." Judge Tingling was referring to the fact that the ban limited sales at some locations (restaurants, movie theaters, and food trucks) and not others (corner convenience stores and supermarkets), that some sugary drinks were included and not others, and that there were no limitations on refills of smaller cups. The judge also ruled that the city Board of Health exceeded its powers in passing the ban. That power, Tingling argued, should lie with New York's City Council.

Mayor Bloomberg has promised to appeal, calling the ruling  "totally wrong."

On the one hand, I applaud the court. The ban was public health at its worst — a potentially disaffecting policy that lacked compelling evidence of  benefits that might justify it.

Yes, there is absolutely no nutritional reason for consumers to drink such an obscene amount of soda in one sitting. And, yes, there is strong evidence that soda consumption is playing a significant role in the obesity epidemic.

But . . . if public officials are going to limit consumer choice, they ought to have at least some data to show that a sugary drink purchase ban, however constructed, will actually have an effect on obesity rates. There is often some degree of paternalism in the work of public health officials — they are, after all, sometimes telling people what is best for them, against what they believe, mistaken as it can be. Polices that are light on evidence, like the prohibition on big sodas, risk alienating the very public it is our mission to serve.

Public health officials and scientists should be motivated by this ruling, and quickly develop more evidence-based policies to curb the obesity epidemic. Some policies seem to be working. Here in Philadelphia the childhood obesity rate declined nearly 5 percent between 2006 and 2010. Experts  attribute the decline partially to city policies removing soda machines from schools and serving free, healthier breakfasts to all students in city schools.

On the other hand, we should all stand behind Mayor Michael Bloomberg's steely resolve in his fight against the obesity epidemic, which is, of course, also a fight against the corporations that push unhealthy products on us and the lobbyists and politicians that shill for them. Bloomberg's public health record has been extraordinary — the mayor's anti-tobacco policies banning smoking from New York's bars and in its parks, its trans fat ban, and requirements to list calories on menus are all significant victories for the public's health. Philadelphia quickly followed New York's lead (and exceeded it with a more comprehensive menu-labeling law), and many other communities came along. Menu labeling is now federal law, although the details are still being written.

I suspect that Mayor Bloomberg has had a plan B up his sleeve all along, and a shrewd one at that. It is entirely possible, in fact, that he orchestrated this course of events. He may have suspected that the ban would not necessarily stand, but that by drawing the soda industry and its allies into this fight he would create a heck of a lot of noise on the subject. His experimental policy could, and might still,   serve as a model for other cities.

And, win or lose, a vociferous debate serves to educate the public about just how unhealthy soda consumption is for us all and how it is contributing to the obesity epidemic. That is one way to create behavior change. Pretty clever; and great politics and public health, if you ask me.

I suspect we'll see more from our nation's Public Health  Mayor. Your move again, Mayor Bloomberg.

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