Recently, the NY State Court of Appeals rejected a request to reinstate the sugary beverage Portion Cap Rule proposed by former NYC Mayor Michael Bloomberg. The court stated that the rule, which would have limited the serving size of sugary beverages* to no more than 16 ounces, would be an infringement on individual autonomy. If individuals had driven the increase in serving sizes and no evidence existed to support public health law, this would be a fair argument.
Economists tell us that in a properly working free market, businesses respond to demand. In this case, it would mean the beverage industry is responding to our demand (i.e., collective autonomy) for super-sized drinks. Of course, the government would be wrong to step in just because our demand made us fat especially if fatness were benign (which it’s not). I assume that is what the Court is thinking; consumers instigated the new normal. But is that what happened? It seems to me, and I grew up with the increase in everything, that the beverage industry decided that an 8 ounce cola with about 10 teaspoons of sugar was not sufficient a serving; the beverage industry decided that upwards of 20 ounces and 24 teaspoons of sugar was more appropriate. You and I did not decide this.
Of course, people in NY have a right to as much soda as they like; this is America. And if this were a soda ban instead of a serving size cap, I’d be one of the loudest voices against it. It isn’t though. The rule is an attempt to return us to pre obesity-epidemic portion sizes, sizes that changed unbeknownst and independent of us. I feel certain no one hoped sodas would have 200 more calories. Very few of us purposefully consume extra empty calories. So, I have to wonder whose autonomy Judge Pigott and the Court are honoring here.
Because I don’t think it’s Mayor Bloomberg and the NYC Board of Health who are trying to manipulate our behavior; I think it’s the beverage industry. The mighty beverage industry pushes overconsumption and Bloomberg’s mighty brand of paternalism seems just about right to counteract it. In fact, Bloomberg and NYC have a history of doing the right thing for health. For example, they put a price floor on a pack of cigarettes, banned smoking in restaurants, bars and parks and raised the minimum age to purchase tobacco to 21. Maybe it is just coincidence, but New York now has one of the lowest rates of adult and youth smoking in the country. I don’t see any reason why Bloomberg’s efforts to curtail obesity should be any less effective.
This is how I see the Portion Cap helping. A 24-ounce soda is a trigger to consume excess calories just like a smoking area is a trigger to smoke. If the 24- ounce soda is off the table, the lure of value pricing and social norms cancels out and consuming the appropriate amount of calories becomes more likely, feasible and possible. This is a great help to those who want to control their dietary intake and it does not prevent others from having as many 16-ounce sodas as they choose.
True, I am a public health policy advocate, but I have also benefited from public health policy on a personal level. I am a former smoker and someone who has maintained a 30-pound weight loss for over 14 years. I find that whatever makes smoking harder makes quitting easier and whatever makes calorically dense choices harder makes maintaining a health promoting weight easier. I am not naïve or authoritarian; people who want to smoke will find a means to do so and people who want to drink gallons of sugar-sweetened beverages will do that too. In America, we have a legal right to make bad choices. But I am American, too, and I have a right to an environment which enables me to make good choices, an environment where I don’t have to fight the ‘all you can eat and drink, value sizing’ mentality. That is my autonomy and I’ll take all the Mayor Bloomberg help I can get, thank you very much.*a sugary beverage is one that contains 25 or more calories per 8 ounces