Thursday, after the city’s board of health formally prohibited restaurants from selling sodas larger than 16 ounces after March 12, 2013, organizations around New York City said they would consider suing the city to get the ban overturned.
Laura Palantone, a spokesperson for New York City Beverage Choices, a group against the ban, says the organization will “carefully review the regulation and explore our options now that [the ban] has passed.” In a press release issued Thursday, the group said they are “exploring all avenues to challenge the board’s ruling, including in court.”
But John Cromer, a lawyer with Burns White who has represented food and beverage companies, says New York City likely has the authority to issue the ban, which was championed by Mayor Michael Bloomberg.
“States, and cities for that matter, have wide authority to regulate public health—smoking bans are a good example, as are motorcycle helmet and car seatbelt requirements,” he says. Most likely, organizations will try to argue that the city has no “rational basis” for enacting the ban.
“You can buy as many 16 ounce soft drinks as you want, you can hold a 16 ounce soda in each hand,” he says. “They can try to argue that the ban won’t do anything to promote public health or argue that it might not reduce obesity, as the mayor is claiming.”
Those opposed could also try to say the ban attempts to pre-empt the U.S. Food and Drug Administration‘s responsibilities or say that the ban violates the U.S. Commerce Clause that regulates trading between states.
“My gut reaction is that the [Commerce Clause] argument has less of a chance of working than arguing there’s no rational basis because they’re not regulating the sale of soft drinks or soda in the state, they’re just limiting what the consumption size can be,” he says.
New York City has enacted a number of anti-obesity campaigns over the past few years: Officials there banned transfats from restaurants in 2008 and required fast food restaurants to post calorie counts. Experts say that if the ban is successful at curbing obesity, other cities and states could try to enact similar measures.
“New York City’s policy to limit the size of sodas is no longer a local story because it has spurred a national conversation about the health consequences of sugary drinks,” Andrew Cheyne, a University of California-Berkley professor who studies the soda industry, says. “This matters because we know from the history of tobacco control that when the public understood the health harms from cigarettes, the industry’s main product, they viewed the marketing or political actions taken by the tobacco companies much more critically,” making them more likely to support a ban.
Cromer agrees: “New York City has been very progressive on these types of health issues, and a lot of these public health concerns seem to originate there,” he says. Though a state would have the authority to enact a similar ban, it’s likely similar bans will be enacted on a local level.
“Bloomberg only needed a few votes on a mayor-appointed board,” he says. “It’s much more difficult to do on a state level.”