March 12, 2013

Stanton A. Glantz, PhD

Rather than appealing court decision overturning the ban on supersized sugary drinks, NY should fix the ban

The court decision, issued yesterday, overturning the New York City Board of Health regulation banning super-sized sugary drinks was reminiscent of similar rulings against attempts by Boards of Health establishing smoking restrictions in the 1990s.

What happened back then is that, as a result of intense lobbying by pro-tobacco "third parties" (whose descendants are working against the NY supersize ban and soda taxes), many boards of health included exceptions in their smoking restrictions for bars or restaurants.

After they did that, the pro-tobacco forces sued -- and won -- claiming that including such exceptions was beyond the authority of boards of health because they moved from issuing regulations to legislating.

Later, when boards of health started issuing regulations that did not include such exceptions, they started winning in court.

So, rather than fighting what is probably a losing battle over the current regulation, the NY City Board of Health should simply issue a new regulation that applies to all businesses in NY City without exception.

That would not only be better public health policy but also more likely to be sustained in court.

You can read the history of boards of health and tobacco here and about how local boards changed what they were doing and started winning in court here.

This is a great example of how the obesity control movement can learn from the tobacco control movement.

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