The New England Journal of Medicine (NEJM) has published two “Perspective” articles in its April 3, 2013, issue, commenting on the recent ruling by Judge Milton Tingling overturning the New York City Board of Health’s restrictions on the size of sugary drinks sold at certain city establishments—the “Portion Cap Rule.” Details about the ruling are included in Issue 475 of this Update.

Attorneys Wendy Mariner and George Annas with the Boston University
School of Health opine in “Limiting ‘Sugary Drinks’ to Reduce Obesity—
Who Decides?” that the court was likely correct in ruling that the Board of
Health lacked the authority to adopt the rule given a court of appeals ruling
overturning indoor smoking rules after examining “the difficult-to-define
line between administrative rulemaking and legislative policymaking.” They
contend that higher taxes on all soda sales would be a reasonable alternative
to the Portion Cap Rule, noting that “[h]igher prices often discourage
consumption.” Observing that the rules’ enactment was widely ridiculed,
including by comedian Jon Stewart, the authors conclude, “Agencies that
overstep their bounds or adopt rules that are intrusive or just plain silly invite
backlash, which can make effective public health regulation impossible. They
make fools of themselves and heroes of the opponents of public health.”

Meanwhile, Amy Fairchild, a professor of sociomedical sciences at Columbia
University, explores in “Half Empty or Half Full? New York’s Soda Rule in
Historical Perspective” the history of public health initiatives that succeeded
by focusing on both environmental and social conditions.

According to Fairchild, the city’s tenements and neighborhoods were cleaned
up in the late 19th and early 20th centuries when “an alliance of public health,
labor, social, and housing reformers organized to get garbage, filth, and the
accompanying microbes off city streets, out of water supplies, and out of the
fetid halls of tenement buildings.” They also “sought to confront unfair labor
practices, hazardous working conditions, child labor, and ‘slave wages’ that
made the poor as a class susceptible to disease.”

The author reports that public health efforts then turned from social reform
and industrial regulation to target “the germ” and “individual behavior.” She
sees this turning point and the “century-old struggle” between effecting
change through an alternating focus on individual and corporate behavior
“playing out again in the case of the giant-soda ban.” While she agrees with
Mariner and Annas that a tax on sugary beverages would “effectively limit
our individual ability to drink ourselves silly,” she characterizes Mayor Michael
Bloomberg’s initiative as an appropriate focus on corporate behavior. She
states, “if Bloomberg is bent on appealing Tingling’s ruling, it is time to start
making a case with some muscle, which will require strong, active support
from the medical and public health communities. If we can challenge the
industries and businesses that profit by promoting bloated serving sizes,
perhaps we can take on other corporate enterprises that similarly contaminate
our social environment.”

About The Author


For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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