American Society For Nutrition

One More Sip from the Big Gulp: Choice and Public Health

One More Sip from the Big Gulp: Choice and Public Health

Excellence in Nutrition Research and Practice
Posted on 10/02/2013 at 04:19:03 PM by Student Blogger
By Ralph Pietrofesa                                          

The Sugary Drink Portion Cap Rule adopted by the New York City Board of Health, which proposed limitations on the sale of sugary drinks to no more than 16 ounces, sparked much controversy and illuminated the classical struggle that exists between public health law and individual liberties. Individuals and establishments in fierce opposition to the proposed legislature professed a fear of uncontrolled federal paternalism that would be infringing on matters of individual choice. Their claims seemed validated when the New York Supreme Court struck down the bill in March, along with the New York Appeals Court coming to the same conclusion in July. However, a much closer look at the Court's decision reveals a more optimistic outlook than the one running across headlines.

First, let's consider the constitutionality of the proposed law. The Sugary Drink Portion Cap Rule was developed by Mayor Bloomberg and adopted by the New York City Board of Health. Under the separation of powers doctrine, the New York City Board of Health lacks the authority to create legislature, as it falls under the executive branch of the government. Alternatively, new laws should be made and proposed by the City Council, New York City's legislative branch. For this reason, the Sugary Drink Portion Cap Rule was deemed unconstitutional, but no judgments were made regarding the moral, ethical, or public health implications of the bill:

Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH's legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health (New York Appeals Court, July 30, 2013).

This ruling may seem like a significant setback in promoting public health, yet it provides open avenues to developing new strategies, while promoting greater public discussion. If legislature like the Sugary Drink Portion Cap Rule is rejected on more procedural terms, how can we learn from these events in developing policy driven strategies to combat obesity? We can look towards previous public health law as prime examples. For instance, the New York City Health Code Provision requiring the posting of calorie information on the menus of restaurants regulated by the New York City Health Department has done little to change people's food choices. Meanwhile, other evidence suggests that taxation, as in the case of a soda tax, may be more effective in changing individual behavior because it presents a major disincentive towards continuing consumption. A behavioral economics approach in which we alter the context in which individuals make decisions may provide the nudge that is needed to move individuals towards healthier choices. As we critically think about the environments in which we live, public health must employ strategies that change the landscape through effective policy.


Regulation won’t change behaviors and combat obesity; approaches rooted in education are a more productive path. In fact, a study from the Yale Public School of Health showed soda taxes could have the exact opposite effect – causing increased caloric consumption of other beverages: - Maureen at American Beverage Association