Banning Soft Drinks: The Big Apple’s Health Gambit

Democrats and Republicans have long agreed that the obesity epidemic deserves the attention of government officials. Republican Governors from Mike Huckabee to Arnold Schwarzenegger, for instance, have exhorted Americans to pay more attention to diet and exercise. And more recently, Democratic First Lady Michelle Obama has written a best selling book about the vegetable garden that she has planted on the grounds of the White House.

Last week, though, New York City’s Independent Mayor Michael Bloomberg raised the stakes by proposing a ban on mega-size cups of soda. He and his Health Commissioner, Thomas Farley, then made the rounds of the television talk shows, defending their actions in the interest of public health.

But their explanations quickly generated an intense backlash from critics. Some argued that business revenue would suffer if the demand for such monster-sized beverages is denied. And others, choosing to occupy the moral high ground, insisted that a ban would represent an infringement by “big government” on the personal liberties of American citizens to choose their own diets.

In many ways, the argument represents a reflection of the far broader debate over the federal government’s role in the nation’s health care system. And regrettably, at the heart of the argument lies a misunderstanding about the scope of Mayor Bloomberg’s proposed regulation itself.

I Blew Out My Flip Flop, Stepped On A Pop Top …

Most major news organizations that are covering the controversy have reported that the Bloomberg Administration is proposing to ban the sale of large quantities of soda. That is not true; in fact, the Administration is banning cups (i.e. containers) that hold soda, and not the soda itself. Furthermore, the Mayor is only proposing to ban certain cups, i.e. those that it claims are damaging to the public interest.

His proposal is certainly not without precedent. Beverage containers have been heavily regulated since Oregon became the first state to pass a beverage container deposit law to support a recycling initiative in 1971. Since then, various beverage containers and their accoutrements have been outlawed across the nation for environmental reasons.

The once-ubiquitous removable pull tabs (or “pop tops”) on soda and beer cans, for example, such as the ones that were memorialized in Jimmy Buffet’s classic song Margaritaville, were banned in many jurisdictions and then replaced by tabs that remain attached to their cans. In other jurisdictions, government officials have adopted numerous measures to wean the public away from traditional non-biodegradable plastic milk bottles that can remain in landfills for decades.

Indeed, American government officials have long restricted the use of various beverage containers in order to protect the health of our ecological environment. But does this imply that our government leaders possess the authority to do likewise in the name of protecting our personal health as well?

The Nanny State

Interestingly, the local New York City antagonists who oppose Mayor Bloomberg’s beverage regulation echo the national critics of President Obama’s national health care legislation by using the same phrase to describe the reason of their disapproval.

And what is that phrase? It’s “the nanny state.”

Oxford Dictionaries defines the phrase as one that describes a government that is “overprotective or … interfering unduly with personal choice.” But neither Oxford, nor other linguistic authorities, offer any interpretive guidance about how to distinguish “appropriately protective” government regulation from “overprotective” regulation, or “appropriate” interference from “undue” interference.

For instance, ever since the Massachusetts Bay Colony mandated the public education of all citizens in 1642, American municipalities have required parents to educate their children in accordance with government approved curricula. Even home schooled children are often required to engage in government sanctioned registration processes.

No one is arguing that mandatory public education is an undesirable component of a “nanny state.” And yet health care services, as opposed to education services, appear to attract that criticism.

The Public’s Dime

It is important to keep in mind that proponents of personal health care legislation tend to offer two very different rationales for their positions. One is that the promotion of personal health represents a moral imperative, one that outweighs any political concerns regarding the value of personal liberty. And another is that the prevention of disease reduces the social and fiscal cost of delivering health care services, and is thus an economic imperative as well.

Although disputes involving perceptions of morality cannot be assessed in a scientific manner, the impact of disease prevention activities on the cost of health care services is indeed a measurable consideration. Obesity, in particular, has been estimated to inflict an annual cost of $190 billion on the United States economy each year.

If a government regulation addressing the size of a soda cup can significantly reduce this immense financial burden, it is difficult to argue against it on economic grounds. Nevertheless, as long as certain critics continue to frame the debate as a matter of personal liberty, they will undoubtedly continue to argue against Mayor Bloomberg’s proposal on political grounds.