Monday, 11 March 2013

Bloomberg's spanking

Not so fast, Mikey.

Just as New Yorkers were bracing themselves for Michael Bloomberg's latest attempt to micromanage their lives, the State Supreme Court has ruled that the "Big Gulp ban" is illegal. The wonderfully named Judge Tingling declared that prohibiting the sale of large soft drinks is "arbitrary and capricious" and declared that the public health justification for the ban is weak and unconvincing. Interestingly, he noted that the expansion of the public health industry in New York City was an unwelcome development...

The judge also appeared to be skeptical of the purview of the city’s Board of Health, which the Bloomberg administration had maintained has broad powers to seek to better the public’s health. That interpretation, the judge wrote, “would leave its authority to define, create, mandate and enforce limited only by its own imagination,” and “create an administrative Leviathan.”

And as, er, Bloomberg reports...

“The loopholes in this rule effectively defeat the stated purpose,” Tingling wrote. “It is arbitrary and capricious because it 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 specific grounds and the loopholes inherent in the rule, including but not limited to no limitations on refills, defeat and/or serve to gut the purpose of the rule.”

The plaintiffs said the decision by the board of health to approve the ban was overreaching and ignored the rights of New Yorkers to make their own choices. The plan is “grossly unfair” to small businesses such as hot-dog vendors and pizzerias because convenience and grocery stores can still sell the larger sizes, lawyers for the groups told Tingling.

We can expect the usual tears and tantrums from public health tyrants like Marion Nestle who had already been plotting the "next logical step". There will be lots of whinging about the supposed power of "Big Soda" and "Big Sugar". Once again, the laws and constitution of a country that was built on liberty have defeated zealots who believe in elite governance and state control.

I can almost sympathise with Eric Crampton's view that New Yorkers deserved the soda ban for their sin of re-electing a decrepit old skeleton who is always in a nanny state of mind...

...a malicious part of me really wishes this had gone ahead. The ban looked to be an intractable nightmare that New York, having elected Bloomberg, really deserved to endure. They could have served as example unto others. Instead, the lesson is that judges will bat back things that are entirely too crazy, so there's no harm in electing Bloombergs. Sometimes, the electorate does deserve to get what it wants, and that right hard.

New Yorkers might have got off the hook this time, but it is good news for all of us that Bloomberg has been prevented from setting another nasty precedent. All we need now is for the WTO to reject plain packaging and the EU to reject minimum pricing. Isn't it funny how the bright ideas of the alleged public health lobby so often clash with laws which were designed to protect decent, civilised, democratic society?


Eric Crampton said...

As best I can read the judgment, it looks like he was mostly saying the health board was ultra vires. A similar ban enacted by City Council rather than by the health board could still work.

I have no clue what Council is like, whether they get on with Bloomberg, or anything about NY City politics. But it seems possible that this all could come back in less buggy form via Council legislation rather than health board reg.

Senzar said...

Maybe you need to have a word with this cheerleader.

Go Mikey, go!