Put a Lid on It: How NYC’s Attempted Regulation of Oversized Sugary Drinks Jeopardizes Traditional First Amendment Values

The American Medical Association has long warned that proactive measures should be taken to limit caloric intake, especially in the form of “sweetened carbonated beverages.”
[2] Nevertheless, consumption of sugary soft drinks is on the rise.
[3]  Between 1999 and 2001, sugary soft drinks comprised seven percent of all calories consumed by Americans, an over four percent increase from similar estimates taken thirty plus years ago.
[4] In addition, portion sizes have exploded.
[5] A soft drink at McDonald’s, for example, has increased in volume 457% since 1955, from seven fluid ounces to thirty-two fluid ounces.
[6] The number of calories and the amount of sugar has surged with the rise of these supersized drinks.

To combat the increase in soft drink consumption (and caloric intake from sugar), the New York City Board of Health adopted § 81.53 into the Rules of the City of New York in 2012, a regulation banning the sale of soft drinks larger than 16 oz. in stadiums, movie theaters and food carts.
[8] The rule, first proposed by Michael Bloomberg,
[9] the Mayor of New York City (and adopted by the Board without any substantive changes), was supposed to go into effect on March 12, 2013.
[10] However, on October 12, 2012, several food industry groups and unions representing thousands of New Yorkers filed suit against the City, arguing that the ban on sugary drinks was unconstitutional and a violation of the separation of powers doctrine.

New York State Supreme Court Justice Martin A. Tingling heard their case in N.Y. Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene.
[12] And on March 11, 2013, the court enjoined New York City from implementing its ban on sugary drinks, a regulation that caused tremendous public attention for almost a year.
[13] In his opinion, Justice Tingling considered two issues: whether the New York City Board of Health lawfully promulgated the ban on sugary drinks and whether the regulation was arbitrary and capricious.
[14] Judge Tingling found that § 81.53, as written, was both “arbitrary” and “capricious” because it applied only to select establishments and stopped the City from enforcing its regulation with any practical meaning.
[15] Mayor Bloomberg spoke at a press conference later that day, vowed to appeal the judge’s ruling and added, “We have a responsibility as human beings to do something . . . I’m trying to do what’s right.  I’ve got to defend my children . . . and everybody else . . . .”

Not everyone sees eye-to-eye with the Mayor. The ban on sugary drinks has been the subject of widespread controversy and is thetarget of fierce resistance.
[17] Opponents argue that § 81.53 is the next chapter in what appears to be a larger pattern of New York City acting as a “nanny state” and infringing on people’s rights.
[18] While the regulation might be “arbitrary and capricious” as Justice Tingling held, § 81.53 would deprive New Yorkers of more than just an oversized sugary drink. Given the expressional values attached to food, a case can be made that New York City’s currently enjoined ban on sugary drinks would also severely jeopardize First Amendment values.

In Food and Culture: A Reader, anthropologists Carole Counihan and Penny Van Esterik note that when a consumer buys food,

the item of food sums up and transmits a situation; it constitutes an information; it signifies.  That is to say, [food] is not just an indicator of a set of more or less conscious motivations, but that it is a real sign…[a] functional unit of a system of communication.

Food is a communicative tool that is used to bring people together, similar to dress or language.
[20]  For centuries, people have created unique social groups through food (and the absence of certain food) just as they have through the spoken word.
[21] Jesus, for instance, used food to sacredly express himself.
[22] In fact, there is even an entire body of science dedicated to this phenomenon.

Food signifying (or signaling) is part of semiotics, the study of signs and sign processes.
[23] Semiotics is a field closely related to linguistics with “important anthropological dimensions.”
[24] Famous Italian semiotician Umberto Eco, for example, has proposed that every cultural phenomenon can act as a form of communication.
[25] Food has been a subject of semiotic theory and inquiry because it affects every individual and is largely accessible; it often sends signals on class, culture, societal relations, inclusion and exclusion.
[26] Food advertising and branding have increased the ways by which an individual may send signals or messages through food by creating new cultural associations and unique messages.

A ban on sugary drinks in New York City, like the one proposed by Mayor Bloomberg, would severely curtail certain individuals’ ability to signify their values. Since most New Yorkers hold a “signature drinking type”
[28] (ordering coffee, tea or supersized sodas with a certain frequency and specificity
[29]), it should come as no surprise that a recent New York Times poll found that the majority of New Yorkers in every borough oppose the ban on sugary drinks.
[30] Many of them are people who drink and value large quantities of soda regularly.

Luckily for those who oppose the ban, on Tuesday, July 30, 2013, the New York Supreme Court, Appellate Division, held that New Yorkers are free to chug supersized sodas.
[32] City officials say they will appeal the decision to the State’s highest court.
[33] As one commentator wrote, “it’s easy to dismiss [individuals’] inalienable right to disgustingly large quantities of chemical-flavored brown water,” but the fact is, such a ban would have a far greater impact.
[34] Rick Hills, a New York University law professor also acknowledged that a ban on sugary drinks would open “pandora’s box” for government interference, one that would allow New York City to potentially “ban red meat—or even all animal products—without violating a person’s right to life, liberty, and the pursuit of happiness.”
[35] As Justice Tingling wrote in his March 11, 2013, ruling, Mayor Bloomberg, by championing the ban on sugary drinks, had interpreted the Board of Health’s powers broadly enough to “create an administrative Leviathan,” one able of creating any rule and “limited only by its own imagination.”
[36] For the sake of protecting the First Amendment, let us hope that the Board’s imagination, along with the ban on oversized sugary drinks, quickly fizzles.

[1] Jason Stern is a 2014 J.D. Candidate at Seton Hall University School of Law and an Associate Editor for the Seton Hall Circuit Review. Jason would like to thank Professor Paula Franzese for her guidance during the writing process.
[3]Seegenerally Jason P. Block et al., Point-of-Purchase Price and Education Intervention to Reduce Consumption of Sugary Soft Drinks, 100 AM. J. OF PUB. HEALTH 1427, 1427 (2010).
[5] N.Y.C. DEP’T OF HEALTH & MENTAL HYGIENE, FROM SUPERSIZED TO HUMAN-SIZED: REINTRODUCING REASONABLE PORTIONS OF SUGARY DRINKS IN NEW YROK CITY (2013), http://www.nyc.gov/html/doh/downloads/pdf/boh/max_size_sugary_drinks_briefing.pdf.
[8] See The City Record: Official Journal of the City of New York, Sept. 21, 2012, at 2602-03 (to be codified at R.C.N.Y. tit. 24, § 81.53), available athttp://www.nyc.gov/html/dcas/downloads/pdf/cityrecord/cityrecord-9-21-12.pdf.
[9] The City Record: Official Journal of the City of New York, June 19, 2012, at 1574, available athttp://www.nyc.gov/html/dcas/downloads/pdf/cityrecord/cityrecord-6-19-12.pdf.
[10]NYC Soda Ban Goes Into Effect in March, But Fines Won’t Start for 3 Months (Jan. 15, 2013, 2:21 PM), http://www.cbsnews.com/8301-204_162-57564114/nyc-soda-ban-goes-into-effect-in-march-but-fines-wont-start-for-3-months/.

[11] N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, No. 653584/12, 2013 WL 1343607 (N.Y. Sup. Ct. Mar. 11, 2013), aff’d, 2013 WL 3880139 (N.Y. App. Div. July 30, 2013).
[12]See id.
[13]Id. at *20-21. 
[14]Id. at *6, *19.
[15]Not So Fast! Judge Halts New YorkCity’s Super-Sized Sugary Drink Ban, CBS NEW YORK (March 11, 2013, 10:25 PM), http://newyork.cbslocal.com/2013/03/11/last-day-for-new-yorkers-to-buy-super-sized-sugary-drinks-in-nyc/.
[17]Alice Park, Goodbye, Big Soda: New York Becomes First City to Ban Large-Sized Soft Drinks, TIME (Sept. 13, 2012), http://healthland.time.com/2012/09/13/goodbye-big-soda-new-york-becomes-first-city-to-ban-large-sized-soft-drinks/#ixzz2IqOXOCwE.
[18] Rachel Silberstein, Edgar Sandoval & Simone Weichselbaum, Bloomy’s Latest ‘Nanny State’ Crackdown Will Curb Junk Food in Hospitals, N.Y. Daily News, Sept. 23, 2012, available at http://www.nydailynews.com/new-york/bloomy-latest-nanny-state-crackdown-curb-junk-food-hospitals-article-1.1166175.
[21]Id.  For example, people often describe their cultural identity through food choice.  Id. at 4.
[22] See, e.g., Matthew 26:26-28 (New International Version), available athttp://www.biblegateway.com/passage/?search=Matthew%2026:26-28&version=NIV. Jesus gives a piece of bread to his disciples and says, “Take and eat; this is my body.” Id. Then he gives wine to his disciples and says, “Drink from it, all of you. This is my blood of the covenant, which is poured out for many for the forgiveness of sins.” Id.

[23]Semioticshttp://en.wikipedia.org/wiki/Semiotics#cite_note-Leeds-Hurwitz.2C_W._1993-23 (last updated July 30, 2013).
[27]See, e.g.Ok Sodahttp://en.wikipedia.org/wiki/OK_Soda. In the early 1990s, Coca Cola, for example, used beverage containers to promote certain ideas, values and attitudes (in addition to the product itself) in its “OK Coke” campaign. The cans displayed cubist looking figures, targeted Generation X consumers and implicitly aimed to mock the “I’m OK, You’re OK” pop-psychology of the 1970s with printed tag-lines on each beverage container. Some of the logos printed on OK Coke cans included: “OK Soda may be the preferred drink of other people such as yourself”; “Please wake up every morning knowing that things are going to be OK”; “OK Soda does not subscribe to any religion, or endorse any political party, or do anything other than feel OK”; “The better you understand something, the more OK it turns out to be.” Id.
[28] Kyrsty Hazell, What Your Eating Type Reveals About Your Personality, HUFFINGTON POST (Feb. 24, 2012), http://www.huffingtonpost.co.uk/2012/02/23/what-your-eating-type-reveals-about-your-personality_n_1296749.html.
[29] Jennifer Peltz, Judge Strikes Down NYC Ban on Supersized Sodas, ASSOCIATED PRESS, March 12, 2013, available at http://bigstory.ap.org/article/judge-strikes-down-nyc-sugary-drinks-size-rule.
[30]See Park, supra note 17.
[31]See Alva Noë, The Value in Sweet Drinks, NAT’L PUB. RADIO (Sept. 24, 2012, 2:54 PM), http://www.npr.org/blogs/13.7/2012/09/24/161277720/the-value-in-sweet-drinks.

[32] N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 2013 WL 3880139 (N.Y. App. Div. July 30, 2013) (affirming on separation of powers grounds and declining to reach the issue of whether the ban is “arbitrary and capricious”), aff’g 2013 WL 1343607 (N.Y. Sup. Ct. Mar. 11, 2013); see also Erinn Cawthon, New York-Size Sodas Get Green Light from Appeals Court, CNN.COM (July 30, 2013), http://www.cnn.com/2013/07/30/us/new-york-large-soda-ban/index.html?hpt=hp_t2.
[34] Lucy Steigerwald, Why New York’s Failed Soda Ban Matters, VICE UNITED STATES (March 2013), http://www.vice.com/read/why-new-yorks-failed-soda-ban-matters.
[35]New York Large Soda Ban to Open Legal Battle, WJLA.COM (June 18, 2012), http://www.wjla.com/articles/2012/06/new-york-large-soda-ban-to-open-legal-battle–77055.html.
[36] Michael M. Grynbaum, Judge Blocks New York City’s Limits on Big Sugary Drinks, N.Y. TIMES. March 11, 2013, at A1.