“The judge jumped in on a legal technicality, and it would be nice if we could keep this debate on nutrition,” Jim Painter, PhD, told FoodNavigator-USA.
“What’s the best for people, and what’s the best that public health (officials) can do for people? The judge said, yes, you can protect people, but is this really eminent danger? In my point of view it is. It’s huge. It’s the big problem of our day. We have everything we can consume and lavish on ourselves and if we don’t learn to control that as a society we are going to kill ourselves,” said Painter, a portion size researcher and a professor at Eastern Illinois University.
Violation of separation of powers
In a ruling on a lawsuit brought against the regulation by a coalition of parties involved in manufacture of soft drinks and their sale within New York City, Judge Milton A. Tingling ruled that the regulation as written allowed the city health department to overstep its bounds under New York’s separation of powers doctrines.
“One thing not seen in any of the Board of Health’s powers is the authority to ban a legal item under the guise of ‘controlling chronic disease’ as the Board attempts to do herein,” Tingling wrote. Under the city's charter, the board may overstep its bounds when the City is facing "eminent danger of disease," but Tingling wrote that "this has not been demonstrated herein."
The plaintiffs in the case argued that the ban had loopholes that would put them at a competitive disadvantage. Convenience stores, like 7 Elevens within the city, would not be subject to the ban because they are regulated under state, not city, authority. And the group cited other problems with the proposed legislation, too. Milkshakes, which provide nutrients along with the sugar, were exempted in the ban. In defining what constitutes a “milkshake,” the proposed ban also included soy milk in that definition. But hemp, flax, almond and other milk substitutes were left out in the cold, and presumably would be regulated by the city as soft drinks for the purposes of controlling portion sizes.
“The loopholes in this rule effectively defeat the stated purpose of the rule,” Tingling wrote.
“It is arbitrary and capricious because it applies to some but not all food establishments,” and because it applies to some sweetened drinks but exempts others, he wrote.
“The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban. With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City," said the American Beverage Association, one of the plaintiffs.
Big portions=big people
Another obesity researcher, Lisa Young, PhD, RD of New York University, said she supported the ban because of what she said she has seen portion sizes do to public health.
“I support it because I have tracked the history of portion sizes that have gotten bigger over time, and is a sufficient explanation for the history of obesity in this country,” she said.
A 64-oz soft drink contains as much as 50 teaspoons of sugar, Young said. A key tenet of the concept of limiting portion sizes is to force eaters to make the active decision to consume additional quantities of a food item, rather than include all of those 50 teaspoons in one decision. If you had a huge glass of unsweetened tea, for example, how many people would choose to dip the teaspoon into the sugar bowl 50 times to sweeten that beverage?
“I don’t think anybody would but I don’t think people are aware (of how much sugar is in the beverages). If we are offered a bigger size, even if we don’t finish it, we end up eating (or drinking) more,” Young said.
The Center for Science in the Public Interest recently created a hard-hitting video called The Unhappy Truth about Soda, claims that "each additional sugary drink consumed per day increases the likelihood of a child becoming obese by about 60%", and that "drinking one or two sugary drinks per day increases your risk for type 2 diabetes by 25%".
According to an analysis of 2005-6 National Health and Nutrition Examination Survey (NHANES) data conducted by the National Cancer Institute, soda, sports drinks, sweetened waters and energy drinks account for 5.5% of calories consumed by Americans.
Young said the exemption of milk shakes speaks to the difficulty of regulating portion sizes in foods that provide nutrition, as opposed to the “empty calories” of sugar-sweetened soft drinks.
“That’s why the ban does not include milk shakes. You are getting positive nutrients. It’s not like soft drinks, which are pure liquid candy,” she said.
Bloomberg announced the appeal at a news conference this morning at a restaurant in New York City that supports the portion size regulation, Young said. Bloomberg said yesterday after the ruling that he was disappointed, but believed that the ruling was fundamentally in error. Young said regardless of the outcome of the effort to ban the super sizes, one goal of the program has already been met, even if the ban has not gone into effect.
“I don’t love the word ‘banned’ because soda is not being banned. It’s really raising awareness of what these huge sizes mean,” Young said.
“Everything in moderation is OK once in a while, but I wouldn’t define a 32 oz or 64 oz soda as moderation. There was a Coca Cola ad back in the '60s that said you could share that 16 oz drink among three people.”