New York State Supreme Court Overturns Ban on Sugary Drinks

I have previously blogged about the New York City law that banned sugary drinks greater than 16-ounces because of health concerns including the increased risk of diabetes and heart disease among youngsters. The law created a major controversy about how far the government can (or should) go in protecting what might be perceived to be the public (health) interest by banning the sale of an unhealthy product. The issue has become even more controversial because on March 11 2013, New York State Supreme Court Justice Milton A. Tingling decided in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, to enjoin New York City’s controversial ban on the sale of large sugary beverages.

Justice Tingle noted among other things that the Department had cited the “enormous toll” that obesity places on the “economic health” of New Yorkers. To Justice Tingle any regard for the economic consequences of obesity demonstrated that the Department based its regulation “on economic and political concerns” outside the scope of its authority. Thus the very fact that the Department considered the economic consequences of the issue it addressed, a consideration that most people would claim is a critical component of sound regulatory policy, helped to doom the ban on large sodas.

Without arguing the legal issues I want to look at some of the health consequences of over-indulging in the sugary drinks and personal liberty versus personal responsibility concerns.

A recent study by Harvard University found that two out of three adults and one out of three children in the United States are overweight or obese, and the nation spends an estimated $190 billion a year treating obesity-related health conditions. Rising consumption of sugary drinks has been a major contributor to the obesity epidemic. A typical 20-ounce soda contains 15 to 18 teaspoons of sugar and upwards of 240 calories. A 64-ounce fountain cola drink could have up to 700 calories.

Sugary drink portion sizes have risen dramatically over the past 40 years, and children and adults are drinking more soft drinks than ever. Before the 1950s, standard soft-drink bottles were 6.5 ounces. In the 1950s, soft-drink makers introduced larger sizes, including the 12-ounce can, which became widely available in 1960. By the early 1990s, 20-ounce plastic bottles became the norm. Today, contour-shaped plastic bottles are available in even larger sizes, such as the 1.25-liter (42-ounce) bottle introduced in 2011.

[What’s next – a 10-liter “big gulp” at 7-11? Where does it all end?]

Here are some more facts:

• In the 1970s, sugary drinks made up about 4% of US daily calorie intake; by 2001, that had risen to about 9%.

• Children and youth in the US averaged 224 calories per day from sugary beverages in 1999 to 2004—nearly 11% of their daily calorie intake. From 1989 to 2008, calories from sugary beverages increased by 60% in children ages 6 to 11, from 130 to 209 calories per day, and the percentage of children consuming them rose from 79% to 91%.

• On any given day, half the people in the U.S. consume sugary drinks; 1 in 4 get at least 200 calories from such drinks; and 5% get at least 567 calories—equivalent to four cans of soda. Sugary drinks (soda, energy, sports drinks) are the top calorie source in teens’ diets (226 calories per day), beating out pizza (213 calories per day).

• A 20-year study on 120,000 men and women found that people who increased their sugary drink consumption by one 12-ounce serving per day gained more weight over time—on average, an extra pound every 4 years—than people who did not change their intake. Other studies have found a significant link between sugary drink consumption and weight gain in children. One study found that for each additional 12-ounce soda children consumed each day, the odds of becoming obese increased by 60% during 1½ years of follow-up.

• People who consume sugary drinks regularly—1 to 2 cans a day or more—have a 26% greater risk of developing type 2 diabetes than people who rarely have such drinks.

• A study that followed 40,000 men for two decades found that those who averaged one can of a sugary beverage per day had a 20% higher risk of having a heart attack or dying from a heart attack than men who rarely consumed sugary drinks. A related study in women found a similar sugary beverage–heart disease link.

• A 22-year study of 80,000 women found that those who consumed a can a day of sugary drink had a 75% higher risk of gout than women who rarely had such drinks. Researchers found a similarly-elevated risk in men.

Before going on let me raise the question whether we should blame the soft drink industry for their irresponsibility in selling increasingly larger sizes of drinks without regard to the health effects? Do they have an ethical obligation to consider the health effects? Where does corporate responsibility end and personal responsibility begin?

If those who consume the soft drinks pay no heed to these fairly well-known facts by now, why should we care if they shorten their lives through consumption of unhealthy drinks? Isn’t this an affront to personal liberty? Where does it all end? Why not ban fast food over certain calorie limits?

Some will say that banning soft drinks over 16-ounces won’t stop the consumption of large sugary drinks. Those who want to drink it will find a way to do so. The alcohol prohibition ban from 1920 to 1933 didn’t stop alcohol consumption. Has the illegality of marijuana affected the level of smoking? I think not.

This does not mean we shouldn’t ban a harmful practice simply because those who are abusers will find a way to still behave in a reckless manner.

The debate over banning sugary drinks over 16-ounces reminds me of the debate over gun control. Critics claim that banning certain weapons won’t stop criminals from getting their hands on such weapons; it will only stop those who want to protect home and property from violent people who would do them harm. Still, don’t we have an ethical obligation, and an obligation to all those who died from violent acts such as in Aurora Colorado, and in Newtown, to do something; act in some way; make an effort to stem the tide of rising violence?

These are difficult issues because increasingly in our society people, especially young people, feel entitled to do whatever they want; say whatever they want; act in any (often times ridiculous and offense) way that they want. As I have blogged about before, we have an entitlement society. Frankly, I blame the parents of today’s youngsters for the problem. All too many gave their kids whatever they wanted without holding them responsible or accountable for their actions.

So, I believe the answer lies in education in our schools about the dangers of unhealthy eating practices similar to unhealthy sexual practices and other behaviors. It may not work but we have to try and our schools should provide a laboratory to influence behavior in a positive manner whether it is by teaching about ethics or about dangerous and harmful habits that can end one’s life before it is time.

Blog posted by Steven Mintz, aka Ethics Sage, on April 5, 2013