In our view: Soft drink fizzle

Published: Tuesday, March 12 2013 12:00 a.m. MDT

FILE - In this July 9, 2012 file photo, protester Eric Moore sips on an extra-large beverage during a protest against Mayor Michael Bloomberg's proposal to prohibit licensed food establishments from using containers larger than 16 ounces to serve high-calorie drinks at City Hall in New York. The era of the supersized cola may come to an end in New York City on Thursday, Sept. 13, 2012, when health officials are expected to approve the 16-ounce limit.

Kathy Willens, File, Associated Press

"Arbitrary and capricious." That is how a judge in New York described Mayor Michael Bloomberg's proposed ban on soft drinks larger than 16 ounces, which had been set to take effect this week.

He might have added, "condescending, intrusive and entirely ineffective."

Yes, obesity is a problem in the United States. And yes, although soft drink companies will argue the point as long as anyone can listen, sugary drinks consumed in bucket-like containers are a contributor to this problem. But it doesn't take a degree in psychology to know that government can't solve the nation's health problems by legislating exact diets. And it is an affront to representative government when a mayor or health board does so without public debate or consideration.

Justice Milton A. Tingling Jr., of State Supreme Court in Manhattan struck down Bloomberg's soft drink restrictions Monday, a decision the New York Times said stunned the Bloomberg administration, which has vowed an appeal. We're guessing the decision led to some degree of cheering across the country. A Rasmusson poll last year found 63 percent of Americans opposed to a so-called "sin tax" on soft drinks, which is another big-government approach to overconsumption. Not many jurisdictions have wanted to follow Bloomberg's lead on this. The same holds for his plan to ban sweets in hospitals.

The rest of the nation has not been completely spared, however. There are other ways in which governments are intruding on eating habits. Some school districts have outlawed sweets and cakes, even to commemorate birthdays, unless they are made following a district-approved recipe. The federal government has released calorie limits for school lunches, which some say short-change student athletes and others with more active lifestyles.

Proponents draw similarities to the anti-smoking efforts that successfully used government restrictions to change the culture and reduce smoking rates. Cigarettes, however, pose clear dangers to the health of users and those around them. They cannot be consumed responsibly. Food choices and quantities are different. Healthy choices vary depending on body size and fitness levels. Regulating them cuts to the core of personal choice. It also, by its nature, leads to a host of inconsistencies and absurdities.

Justice Tingling enumerated some of these in New York's proposed soda limit. It would have applied only to certain drinks containing sugar. People could order milk shakes as large as they pleased. In addition, restaurants could have served drinks larger than 16 ounces, but not convenience stores. The rule would not have applied to alcoholic beverages, which becomes an issue with beer at sports arenas. Also, the 16-ounce limit would not have kept people from obtaining free refills as often as they pleased. People would have been free to continue buying sugary drinks in large quantities at grocery stores, which they could consume at home.

The rule would have had economic consequences. The cost of a soft drink likely would have risen to cover the losses convenience stores would experience from not being able to offer larger drinks.

We don't know how this will play out as appeals are heard. We're confident, however, that the key to ending obesity does not lie in government regulations on quantities, recipes or portions of otherwise legal and harmless products. Consumers, given nutritional information on food labels, are equipped to make their own choices, good or bad.

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