Early in the summer of 2012, New York City Mayor Michael Bloomberg proposed to ban the sale of sweetened beverages larger than 16 ounces. It was Mayor Bloomberg’s goal to fight the higher obesity rates of the city by making unhealthy portions less available. Mayor Bloomberg’s plan was not to ban the sale of soda, but to limit the sizes sold. The ban would affect food establishments that are monitored by the City Department of Health. Many representatives of the soda industry and concerned citizens have voiced their opposition to the ban, but it will not be decided by a legislative vote. The ban will simply need the approval of the Board of Health. The proposed ban is controversial because it infringes upon freedom of choice, it lacks the unanimous approval of New York City, and it could be seen as “demonizing” an industry that is not the sole cause of obesity. Mayor Bloomberg recognizes that carbohydrates from sugared drinks are not the sole cause of the “epidemic” of obesity within New York, but he believes the ban could be a step in the right direction. The ban’s purpose is exclusively to fight obesity, but many ask why Mayor Bloomberg is focusing on weight-loss when his proposed solution could harm industry.
The principle of paternalism, that the state may interfere with another person, against their will, with the motivation of protecting that person from harm, underlines a wide range of policies and laws across the United States, and there is already a precedent for such paternalistic laws particularly within New York City. New York City, under the leadership of Mayor Bloomberg, has enacted regulations on smoking, restaurants’ use of salt and trans fats. Laws prohibiting marijuana, cocaine, and other potentially harmful drugs are made with the goal to protect citizens. Seatbelt laws and the prohibition of cell phone use while driving all infringe upon a person’s freedom of choice but have been accepted for their inherent positive causation meaning there will be less deaths and injuries in accidents. Paternalistic policies are made to maintain the public’s safety and well-being with the assumption that the government “knows best.” Mayor Bloomberg’s proposed ban on soda sold in containers larger than 16 ounces targets the growing problem of obesity in New York City. Although obesity has been a popular topic of discussion in the City, there has been negligible advancement in weight-loss. This growing problem shows that education is not enough to incentivize people to control themselves. Dr. Donald Klein writes, “A fleeting, short-term self that enjoys chocolate, nicotine, or heroin is working his will on an enduring self that pays the cost. Although we may fancy ourself a fully integrated and consistent being, it might make more sense to describe ourself as a bundle of multiple selves, selves that overlap, intermingle, and sometimes conflict”. That more than 50% of New Yorkers are overweight shows the people do not recognize their own long term interests. Mayor Bloomberg’s goal is to limit soda consumption of the population. He has the wellbeing of New Yorkers in mind and he is following a precedent that people need guidance in personal choices.
The ethical implications of paternalism are that the government is taking away personal freedoms because the government presumes that it “knows best” for the population. Paternalism inherently assumes that individuals cannot be trusted to make its own decisions. Personal freedom, however, is a cornerstone of the United States; The Constitution and the Bill of Rights guarantee individual’s freedoms, limit the role of government, and reserve power to the people. A competent person’s freedoms should never be infringed upon, even for that person’s own good. John Stuart Mill wrote, “. . . the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise, or even right.... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is of right, absolute, over himself. Over his own body-mind, the individual is sovereign”. The paternalistic policies cited by the proposition that apparently set a precedent for this ban on soda are not good comparisons. Smoking bans for example are paternalistic in nature yet are morally acceptable because smoking not only harms the person but also those surrounding the smoker through passive smoking. Henry David Thoreau was quoted in saying "[If] . . . a man was coming to my house with the conscious design of doing me good, I should run for my life". No government can be sure that their policies are what are universally right for its people; this should be left for the individual to decide.
 McAffee, Thomas B., and Bybee, Jay S., ‘Powers reserved for the people and the states: a history of the Ninth and Tenth Amendments’, Praeger Publishers, Westport, 2006, P.2
Although rising obesity levels in the city have been a major issue in New York City recently, any measures already enacted have failed to curb the growing numbers of obese New Yorkers. The Bronx has the largest percentage of overweight adults, a staggering 70 percent; the other four boroughs also have seen increases in the past decade. Sixty-two percent of Staten Island adults are overweight; followed by Brooklyn, at 60 percent; Queens, at 57 percent; and Manhattan, at 47 percent, according to city health data. The New York City Department of Health has enacted several programs promoting healthier living such as health fares in low-income areas and the Adopt A Bodega initiative, through which local bodegas or small delis and groceries agree to sell produce from family-owned, local farms, providing healthier foods to New Yorkers for reasonable prices. But the results, or rather lack of them, show that education and access are not enough. As Mayor Bloomberg has argued, the ban will have an effect because it follows the principle that if some people have smaller portions given to them, they will consequently drink less. The Mayor doesn’t hope to prevent all people from drinking soda. In fact he emphasizes that this ban wouldn’t come close to restricting personal freedoms because people would still be free to order however much soda they would like. The customers would simply have to be served multiple containers. This is not going to eradicate excessive sugar-intake, however a study by Dr. Brian Elbel, an assistant professor of population health and health policy at NYU Langone School of Medicine in New York City, determined that 62% of drinks bought at restaurants were over the size limit and the result would be that the average consumer would take in 63 fewer calories per trip to a fast-food restaurant.
The ban is unnecessary because it will prove to be useless. Although the Bloomberg-appointed Board of Health gave their rubber stamp of approval to Mayor Bloomberg’s proposal, several board members voiced their apprehension of the ban and its effectiveness. Board member, Dr. Michael Phillips brought up the fact that the ban unfairly targeted establishments regulated by the city because those regulated by the state—7-Elevens and grocery stores—would continue selling larger sodas. The ban also focuses on sugary drinks alone. "We're really looking at restricting portion size, so the argument could be…what about the size of a hamburger or the jumbo fries, and all that kind of stuff?” The mayor himself said in the MSNBC interview that the goal was to target portion size. Yet, somebody can easily buy four 16-ounce drinks and be worse for it. The people could also pass the deli and patronize the grocery store for large sodas, affecting the Deli’s business while still maintaining high sugar intake. The ban would be useless in fighting obesity because there are too many easily accessed loopholes and as it stands now, would just be a major inconvenience.
Thomas Jefferson said “the purpose of government is to enable the people of a nation to live in safety and happiness”. As an elected government led by Mayor Bloomberg, the government of New York City is obligated to lead the city in a positive direction. In Bloomberg’s case it was among his campaign promises “To achieve the biggest public health gains in the nation” and given his record with the smoking ban this kind of proposal is the obvious way to achieve such a goal. as the Soda ban is not an infringement upon personal rights but a necessary public health measure. The ban on large sodas does not prohibit the consumption of soda, it simply impedes negative choices for poor nutrition. The City has an obligation to promote healthy living as a form of keeping its citizenry safe and the New York City Department of Health and Mental Hygiene clearly states ‘Ourmission is to protect and promote the health of all New Yorkers’. “Obesity is a nationwide problem, and all over the United States, public health officials are wringing their hands saying, ‘Oh, this is terrible,’” but Mayor Bloomberg said, “New York City is not about wringing your hands; it's about doing something.” The mayor continued by including how he viewed his duty: "I think that's what the public wants the mayor to do.”
There is no obligation on the city to protect citizens from their own choices. Citizens are responsible for their own bodies including what they eat and drink. Making any part of government responsible for this would mean a need for much more regulation on almost anything that would protect lives. In this case it would require a much tougher response than simply a partial ban that only affects large drinks. Moreover if there is such an obligation why is it the obligation of the city while the state does not have such an obligation with regards to 7-11s?
Although the soda ban is not a blanket prohibition of sugary drinks, the proposed ban impedes the public’s right to choose. ‘Big Government’ has become an important issue to many who view the extensive array of government regulations and laws as excessively interventionist and intruding. By Mayor Bloomberg proposing this ban, he continues a trend of the government curbing citizens’ rights to choose, and interfering in the personal lives of its citizenry. The government has no right to be restricting the size of someone’s portions, this is the government regulating one’s diet. This ban inherently affects the consumer’s right to choose because it is prevents the choice of a larger size of soda. The Mayor hopes to influence New Yorkers’ choices toward better nutrition.
Moreover Mayor Bloomberg’s method is not through a representative legislative body but through his personally appointed Board of Health (2), the people have therefore been denied their right to choose, through their representatives, whether this legislation should be allowed.
Freedom of choice is not absolute; it does not mean the consumer should be free to buy whatever they want from wherever they want. For example there is no expectation for restaurants and stores to always have both Pepsi and Coca Cola. In this instance freedom of choice in terms of size is not absolute; there is the freedom to have as much soda as the consumer desires they simply have to buy it in smaller portions. Arguing that representatives’ not being able to choose whether to enact this legislation is also restriction of choice ignores that Bloomberg himself is an elected politician that was chosen by the people.
The proposal for this ban on large sodas would only affect businesses regulated by the NYC Board of Health. Restaurants, delis, food carts, and concession stands at theaters and stadiums would be affected because they are considered Food Service Establishments (FSEs). The ban would exclude grocery stores, 7-Eleven’s, and other establishments that are not considered FSE’s but are regulated by the State. Consequently, the ban cause the FSE to face repercussions as they would have to serve less soda (the goal of the ban), but also this selective, non-universal ban could encourage consumers to patronize other establishments where they would not be affected by the ban. There is currently a level of demand for large sodas in the market, but the ban would place a barrier on that whole sector of the market. It would be the government directly impeding free enterprise by providing different sets of rules for competing stores. In addition, New Yorkers would be encouraged to report violating establishments that would receive $200 fines. It would be unfortunate to hurt businesses for a ban that wouldn’t necessarily be effective in its main goal to curb obesity because of the multiple blatant loopholes.
There are only slight price differences between 34 and 18-ounce sodas. McDonalds and Coca-Cola corporations were pushing independent franchises to lower the price of sodas to one dollar. While the goal of the ban is to cut down the consumption of soda, the government has the right to put their citizens’ health needs above free enterprise. The non-universality of the ban is unfortunate but this ban is merely a small step in the direction of curbing obesity rates. The fact that restaurants will not be able to serve gigantic portions of soda will not push New Yorkers from eating at those restaurants to eating their meals at 7-Elevens. These are clearly two separate markets; one for purchasing drinks the other for consuming them with meals. It is therefore wrong to conclude that this is any kind of barrier to free enterprise.
While the City has the right to exercise its abilities within the law to protect and aid New Yorkers, it must do so as a democratic body representing its constituents. The soda ban, whether it would actually do anything to curb obesity, is wrong because it isn’t representative of the people. Councilman Dan Halloran spoke at the ‘Million Gulp March’ in protest of the ban: “Mr. Mayor, if you want to make a law, go through your legislature, and make the law. Do not try to backdoor it through an administrative agency that is unaccountable to the people.” Mayor Bloomberg’s attempt to pass this ban without the input or approval of the people is undemocratic. The New York City Health Department is an eleven-person committee appointed by the Mayor. Thus, there is a large risk of Mayor Bloomberg exercising his personal will through this branch without any regulation. The proposed soda ban would be a fiat with the rubber stamp of approval from the Board of Health, but no citizen input.
First how democratic the governance of the city is does not detract from the right of the city government to restrict the size of soda drinks. The system of government has not been changed in order enact this particular regulation. Second it must be remembered that Mayor Bloomberg himself was elected. He was elected to a third term with 51% of the vote compared to 46% for his Democratic rival. To be elected for a third time in a Democrat stronghold gives him a good deal of electoral legitimacy.
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