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Insight & Intelligence™ : Mar 25, 2013

On the Menu: Supersized Soda Wars

The NYC ruling halting the ban on large-sized sugary beverages is unlikely to stop future court fights over anti-obesity laws.
  • Alex Philippidis

The battle over soda consumption, like the broader war on obesity, will likely rage on and even intensify, despite a federal judge’s ruling that blocked New York City from banning sale of the sugary beverages in containers larger than 16 ounces.

Government’s intent on controlling healthcare costs will be as apt as ever to join anti-obesity advocates in asking the courts to uphold laws designed to reduce soda consumption. They defend their efforts as promoting public health over the private interests of beverage companies, let alone the free choice of consumers.

While advocates have cited troubling statistics—more than 78 million adults (35.7% of population) and 12.5 million children and adolescents (17%) were obese in 2010, CDC said last August—the city’s interest is arguably as much economics as health. New York’s namesake state forces localities to pay 25% of the cost of acute care services and 9% of the cost of long-term care services. New York City spent $6.2 billion on Medicaid in the fiscal year ending June 30, 2012.

Portion Cap Rule

Earlier this month, a coalition of city-based beverage makers, grocers, chambers of commerce, and trade groups for restaurant and theater owners persuaded New York State Supreme Court Justice Milton A. Tingling that the ban wrongly exempted convenience stores and supermarkets, which are regulated instead by New York state; and that only the City Council, not the Bloomberg-appointed Board of Health, could approve a measure as sweeping as the soda-container ban.

“The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine. The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar-sweetened beverages,” Justice Tingling wrote.

Bloomberg has said the city will appeal Justice Tingling’s March 12 decision, and that he’ll fight the issue well after his term of office ends December 31.

“I don't expect a halt to other anti-obesity legislation, just as past successes didn't automatically translate into easier passage for the soda law,” Rogan Kersh, Ph.D., provost and professor of political science at Wake Forest University, told GEN.

New York City, Dr. Kersh added, can be expected to continue developing anti-obesity measures, designed to improve both nutrition and health. But he cautioned: “A setback like this one hampers the effectiveness of such a multiple-policies approach versus a single silver bullet.”

Public Education May Not Be Enough

Larry Cohen, founder and executive director of the Prevention Institute, a nonprofit national center dedicated to improving community health and equity, told GEN the push to legislate against food and drinks linked to obesity reflects a consensus that public education alone cannot change behavior.

“Public education is necessary, and it’s a part of solutions. But in order to achieve change, the tipping factor for norms change is often policy change,” Cohen said. “We’ve seen more public discussion about the dangers of smoking, or the dangers of soda, or the dangers of sugar when there’s policy discussion. So in a way, it contributes to the education. Expecting we could do this by education alone, when the educational messages are so tilted by industries that are concerned about profit, not health, is totally unrealistic.”

He cited McDonald’s, which according to Kantar Media spent $963 million on U.S. advertising in 2011, up 8.6% over 2010. The fast-food giant has been estimated for years by analysts and others to spend about $2 billion worldwide on marketing annually, a number not confirmed by the company. McDonalds’s—which operated 34,480 restaurants in 119 countries worldwide as of December 31, 2012—has responded to criticism of its menu by citing its addition of salads and lower-calorie items in recent years.

Cohen said that while he found the court decision disappointing, it may ultimately advance future curbs on soda and food linked to obesity.

“Local policies bubble up from one community to another, and they build on one another, whether we’re talking about a soda tax, or nutrition standards for kids’ meals, or having healthy water as part of what’s available in the schools,” Cohen said—the last example an initiative for which Prevention Institute worked with Gov. Arnold Schwarzenegger a few years back.

“What the container issue is about, although it’s very specifically around reducing what’s sold, it’s also about promoting dialogue and norms change. More than cup size, it’s about people paying attention to health,” Cohen said.

Obesity: The New Tobacco?

California’s array of anti-smoking laws enacted over the past three decades explains in no small measure why the Golden State’s number of smokers has fallen in half, to the nation’s second-lowest smoking rate at just over 12% of adults in 2010, according to the state Department of Public Health. Yet that still comes to 4.5 million adults.

Cohen balks at the suggestion that obesity has become the new tobacco: “I heard a figure recently a billion people will die in the next century from tobacco. So tobacco is still the new tobacco.”

Dr. Kersh, however, more readily sees the analogy between regulation of smoking and obesity: “Obesity has been seen as ‘the new tobacco’ for over a decade.”

And as with cigarettes, a 2009 New England Journal of Medicine paper predicted that taxes on soda will likely reduce consumption and confer another benefit: “The tax has the potential to generate substantial revenue to prevent obesity and address other external costs resulting from the consumption of sugar-sweetened beverages, as well as to fund other health-related programs,” Kelly D. Brownell, Ph.D., director of the Rudd Center for Food Policy & Obesity at Yale University, and six other researchers concluded in The Public Health and Economic Benefits of Taxing Sugar-Sweetened Beverages.

Beverage industry opposition quashed such a tax from being enacted in New York state in 2010, though a lobbyist for Pepsi-Cola bottlers told the New York Times the company instructed its reps to downplay the threat of the company retaliating by pulling jobs out of the state—a specter raised instead by numerous local officials. Obesity initiatives are likelier to pass in localities than states, Cohen noted, since advocates for beverage makers and other industries hold more sway with lawmakers.

Added Dr. Kersh: “Food/beverage industry representatives quickly point out that we need to eat and drink to survive, while we don't need to smoke. It's less clear that we require soda or junk food to survive/thrive: in fact, one could argue the exact opposite.”

Given the health risks of sugary sodas and food rich in calories and carbohydrates—and the resulting increase in public health spending, expected to balloon even more as the Affordable Care Act is implemented in coming years—supersized court fights over limiting soda and junk food consumption have arguably just begun.