Cola Wars: The Big Loopholes Dooming Bloomberg's Soda Ban

In another effort to attack obesity (and libertarianism) in New York City, three-term Mayor Michael Bloomberg is attempting to institute a ban on sodas in the city. Under Bloomberg's plan, it would be illegal for "food-service establishments" like mall food courts, delis, sports arenas, and food carts to sell sodas and other sugar-laden drinks in cups or bottles larger than 16 ounces. The ban could take effect as early as March of next year, at which point New Yorkers can say goodbye to giant glasses of Coke in restaurants. Say goodbye to 20-ounce sodas from the bodega on those sweltering summer afternoons.

Naturally, Bloomberg is facing blowback from many Americans who feel like he's restricting freedom. "[I]t is patently absurd for Bloomberg to claim he is not limiting freedom when he uses force to stop people from doing something that violates no one's rights, whether it's selling donuts fried in trans fat, lighting up in a bar whose owner has chosen to allow smoking on his own property, or ordering a 20-ounce soda in a deli," Jacob Sullum wrote in Reason, referencing Bloomberg's past bans on smoking and trans fats.

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Sullum is right that Bloomberg has limited freedoms time and again during his years in office, a violation most foul in the eyes of Reason's ultra-libertarian editorial board. But there's no arguing with the fact that his attacks on freedom have had the desired effects. According to a report by the Robert Wood Johnson Foundation, the trans fat ban cut the amount of saturated fat and trans fat in French fries sold by New York City's restaurant chains by more than half. And the smoking ban saw New York City's smoking rate fall to 14 percent. In fact, Bloomberg's inveighs against consumer choice have been so successful that numerous politicians in places far away from New York have started to follow his lead, introducing public-health bans of their own. The soda ban, however, may be Bloomberg's first big, embarrassing defeat.

The first and most important problem with Bloomberg's soda ban is that, unlike with his trans fat ban, it won't be illegal for places to carry soda. Everyone can continue selling sugary drinks—remember, even pure orange juice has a lot of sugar in it—and some places, like grocery stores, can even continue selling sodas larger than 16 ounces. Also exempt will be the convenience store 7-Eleven, which will be able to sell its 40-ounce Big Gulp because the store is classified as a "grocery establishment," not a food-service establishment. That means that if you live in New York and want to drink 32 ounces of Mountain Dew in one sitting, you can do that; you'll just have to order two 16-ounce glasses, or go to 7-Eleven, or go to any one of city’s dozens of grocery stores.

Essentially, this so-called "soda ban" isn't a ban on soda at all; it's a ban on being able to have soda conveniently. Destroying the convenience of smoking by outlawing it in bars and parks was part of Bloomberg's war against cigarettes. But he also bolstered those salvos with a heavy tax on tobacco that made smoking an expensive pastime. Without that financial incentive, it's unlikely the smoking ban would have been as effective. The soda ban has no such incentive.

Besides the fact that people will still be able to get soda everywhere they could before, and in whatever quantities they'd like, the ban curiously exempts "dairy drinks." That means that while someone going into a bodega for big bottle of Pepsi will be turned away, that same person can go into a Starbucks and get a venti Frappuccino (200 calories and 34 grams of sugar in every 12 ounces) at their leisure. The fancy milkshakes at all of the upscale restaurants now specializing in "comfort food" will also remain legal. These dairy drinks are loaded with sugar just like any soda—plus a healthy dose of fat—and yet they made the cut while the sodas didn't. Why? Consider the difference in clientele: Black people get more of their calories from soda than any other ethnic group, while Starbucks is a place that caters to people willing to pay $3 or more for a cup of coffee (read: wealthier white people). To many outsiders, Bloomberg's latest gripe appears to be powered by classism; he doesn't like cheap soda and the poor people who consume it in large quantities.

Only time will tell if the soda ban even goes into effect, let alone if it works at helping curb obesity in New York City. In the meantime, perhaps Bloomberg can fix the legislation's gaping loopholes in time to get more people on his side. It's unlikely that he will, of course, which is to be expected from a man who sometimes appears to like the hatred he receives. He likes it so much, in fact, that he wants you to live a long life so you can hate him more.

Photo via (cc) Flickr user Boss Tweed.