Soda ban sense and nonsense

Many who hear of this law will have the gut or knee-jerk reaction: somehow government is violating our rights.

WASHINGTON,  September 15, 2012 - I Love New York may not apply to big soda enthusiasts anymore. The City That Never Sleeps passed a ban last week prohibiting restaurants, street cart merchants and movie theater snacks sellers from selling you a soda or other sugary drink larger than 16 ounces after March 12, 2013.  Of note is that supermarkets, grocery stores and convenience stores such as 7-Eleven are exempt, so Big Gulp drinks do survive.

Our health matters to the folks who run NYC. The stated goals in passing this law were to promote a healthier lifestyle and to address obesity. Does it follow that a healthier lifestyle result? Will those suffering from obesity now find a spec for the solution? Probably not. No, actually, clearly not. But the ban is yet another step in the right direction for these concerns.

The problems of an unhealthy lifestyle or obesity are not going to be solved by limiting the size of your soda. If you are intent upon drinking more soda, you will buy multiple cups. The point of the ban is that oversized sodas clearly contribute to health problems. Change happens slowly, incrementally, bit by bit. Educating the masses in the process of any change is vital, and health education remains a necessary objective that’s in complete sync with NYC’s stated objectives in passing the ban. Thus, onward with education, and while you learn, drink something with reduced sugar content, or even, no sugar content…

Limiting the size of the soda you can buy is one tiny step for mankind. Your gut reaction (sorry for the pun) notwithstanding, what NYC did is absolutely legal.

New York’s board of health and Mayor Bloomberg should be congratulated, and they should also take solace that the anticipated legal challenges, aimed at eliminating the ban, will almost certainly fail.

The city has a great deal of authority to make laws that address public health.  Banning cigarette smoking in public places stands out as the prime and closest example. 

Allow me to dispense with the only realistic, possible legal argument that opponents may assert.

The ban violates the U.S. Commerce Clause. 

No, it does not. The Commerce Clause regulates trading between states and the ban is not regulating the sale of soda, it is just limiting the size of the container in which the soda is sold. The Supreme Court has interpreted the clause to mean that states cannot take actions that harm interstate commerce.  This regulation does not.

Next, the Constitution has been interpreted to give states, and by extension municipalities, very significant power to regulate public health and safety. Consider New York’s ban on trans-fats in 2008 and their requirement that fast food restaurants post calorie counts.

Finally, a court deciding the matter will balance any possible negative impact on commerce with NYC’s authority to regulate public health.  Here, NYC will win, hands down. This is a classic case of public health action.

I understand that many who hear about this law will have the gut or knee-jerk reaction that somehow government is violating our rights. The real issue then, in other words, that we need to get past, is “why should the government be allowed to tell me what can I buy or what can I sell as long as it is legal”?

The answer for those wanting to purchase those ridiculously large drinks is that some of us are ignorant. Seriously though, our legislators often pass laws to help those who do not understand things in the name of our best interest. See Democrats vs. Republicans for more on this point.

On the simplest level, think about laws governing the maximum speed you are allowed to drive your car in your neighborhood. Aside from the common sense understanding, do you really know why the limit is 15 MPH versus 20 MPH? The answer lies in studies you have probably never seen, nor would care to review or process to render “your opinion.” You simply accept “the limit.” You also do not complain that your personal rights have been taken away because you were told to drive at a certain speed.

The answer for the merchants wanting to sell the big drinks is that they are not going to suffer financially. They will undoubtedly profit more here, as they will raise the price of the 16 ounce drink so that if you buy two of them, it will cost more than the one that previously sold which contained 32 ounces.

What I will call the “bottom line” legal analysis here is that laws affecting our health and safety have always been desired, passed, and mostly have always benefited society. Consider these health and safety matters that we now take for granted, assume, and often insist upon:

Food Sanitary regulations (regulating kitchens, employees must wash hands before leaving the bathroom, hair-nets, gloves, etc.)

Medical Sanitary regulations (standards for cleanliness, washing hands, gloves, masks, etc.)

Roadway vehicle speed limits

Traffic lights, STOP and YIELD signs on the roadways

Motorcycle helmet laws

Seatbelt laws

Child car safety seats

Amusement Park rides height and weight regulations for children

Laws prohibiting yelling “fire” in a movie theatre

I could add THOUSANDS of examples to this list. You get the idea.

While some “I want my rights” individuals may complain, we as a society want and insist upon both laws and things that protect us, that keep us safe, and laws and things that enhance, rather than detract from these concepts. In light of overwhelming study after study linking excess sugar to poor health and obesity, how can anyone argue that a law limiting the size of a soda you can buy is a bad law or that it “deprives” us of our “personal freedoms?” Contrast this law with the laws passed during the era of prohibition, where alcohol was banned completely. This law does not deprive us of anything; rather, it restructures the delivery in an effort to address our health. Because a law touches on our health does not differentiate it from all of the other similar “protect me” laws we absolutely, automatically, endorse. 

Provide any argument against NYC’s soda size limit law you desire. None will make any sense from any health perspective, and none will have any legal muster.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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