Mayor Bloomberg Loses Battle on Soda Sizing, But the War on Sugar Rages on

By Gordon Schnell

When New York City Mayor Michael Bloomberg puts his mind to something, he rarely comes up short.  But that is exactly what happened last week when State Supreme Court Justice Milton Tingling struck down the Mayor’s plan to regulate the size of soda cups served in movie theatres, concert halls, restaurants and other eateries throughout the city.  For Justice Tingling, it was not even a close call.  The Mayor had significantly overstepped his authority and ventured into that danger zone of  “arbitrary and capricious” government regulation.  It was a nice victory for the pro-soft drink, pro-sugar lobby.  Not to mention all those people, a majority of New Yorkers in this case, who do not appreciate an overly paternalistic approach to governing how we take care of ourselves.  For proponents of super-sized sodas and other sugary treats, however, there is very little to celebrate here.  They may have won this discrete battle against over-sized soft drinks.  But the larger war against sugar is only getting more fired up.

Justice Tingling’s ruling does not even attack the idea of regulating soft-drink portions as a means of addressing the public health concerns associated with our ever-worsening sugar surfeit.  It does not address the propriety of regulating our sugar intake at all.  Instead, his decision takes issue with the more mundane questions of how the Mayor’s regulation was enacted and how it was to be applied.  Specifically, the judge found it uneven in its proposed scope and enforcement and so crammed with loopholes as to defeat the very objective the rule was designed to serve:

[I]t applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.

The judge seemed even more concerned with how in passing the regulation the Mayor completely sidestepped the City Council, turning to his own anointed Board of Health to sheppard the law through.  Justice Tingling was clearly perturbed in the Mayor’s overreach,  and may have viewed it as just another power grab by a public official who is clearly used to getting his way.  He was particularly troubled with the broader ramifications of what he considered such a limitless exercise of public authority:

The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine.  The Rule would not only violate the separation of powers doctrine, it would eviscerate it.  Such an evisceration has the potential to be more troubling than sugar sweetened beverages.

Mayor Bloomberg has vowed to appeal the decision, though based on its strong wording and well reasoned analysis, his chances of success are not high.  But none of this reaches the more fundamental issue emanating from the Mayor’s attempt to address what many see as one of the country’s most pressing health concerns.  The American Heart Association recommends that the average person consume only about 8 teaspoons of added sugars a day.  Yet, the average American consumes far more — upwards of 23 teaspoons a day based on estimates from the Department of Agriculture.  Many are claiming that this escalation and excess in our sugar intake is directly responsible for a rise in obesity, heart disease and most critically, diabetes.

According to a recent study in the PLOS ONE medical journal, diabetes has more than doubled globally over the past thirty years with nearly 1 in 10 adults worldwide now affected by the disease.  The PLOS study could not have been more dire in its direct linkage of excessive sugar consumption and diabetes.  It found that every 150 kilocalorie per day per person rise in sugar availability — the sugar equivalent of one can of soda — was associated with a 1 percent rise in the prevalence of diabetes.  Notably, this direct correlation was independent of any other potential contributants to the disease such as obesity, poverty, age, alcohol consumption and lack of exercise.  As reported in a recent New York Times column on the subject, the PLOS study demonstrates the sugar-diabetes link “with the same level of confidence that linked cigarettes and lung cancer in the 1960s.”  According to Rob Lustig, one of the study’s authors, “you could not enact a real-world study that would be more conclusive than this one.”  He added, “this study is proof enough that sugar is toxic.  Now it’s time to do something about it.”

Mayor Bloomberg has certainly heeded the call.  And he is not alone in this anti-sugar crusade.  Several weeks ago a who’s who gathering of scientists and healthcare organizations filed a Citizen Petition with the FDA urging the agency to take aggressive action “to decrease the consumption of added sugars to safe, recommended levels.”  According to the head of the Center for Science in the Public Interest, the organization behind the petition, “sugar-based drinks are unsafe for regular human consumption.  Like a slow-acting but ruthlessly efficient bioweapon, sugar drinks cause obesity, diabetes, and heart disease.”  Among other things, the petition specifically asks the agency to facilitate significant reductions in sugar levels in soft drinks and other foods and help spread the word on the serious dangers associated with having too much sugar.  This call to action is being joined by major health departments across the country, including Baltimore, Boston, Los Angeles, Philadelphia, Seattle and Portland, Oregon.

So Mayor Bloomberg may have gotten it wrong in his specific plan to control how much sugar we imbibe.  But he certainly got it right in shining a spotlight on an issue that should have all of our attention.  Maybe that was his plan all along.  And maybe with more education and awareness regarding the role sugar is playing in our diet — accounting for more than a quarter of the calories for 40 million Americans these days — we won’t need a rule to stop us from super-sizing our soda servings.