Wednesday, July 2, 2014

Can I get a "Team Gulp" with that Please?

There has been much debate recently about the “big soda” effort in New York. The details on obesity and efforts to curb it  by restricting portion size were in this blog about fourteen months ago in Get me a Huge Soda Please.

The New York State Courts, concluded their review of the situation in late June. The New York Court of Appeals, which is the highest court in their state system, concluded in a 4 to 2 decision that the New York City Board of Health exceeded its authority, under separation of powers, when it banned the sale of soda (pop, soft drink, coke) in portions larger than 16 ounces. The city could appeal to the U.S. Supreme Court, but with a win record of 0 and 3, they will likely think hard before doing so. 

The plan has often been described as the “big gulp ban,” a reference to the offering of national chain 7-11. According to, we have 7-11 to thank for large soft drinks. In a May 2013 story, it says that “30 years ago, the average soda serving was just six ounces.” Then 7-11 pioneered the 32 ounce “Big Gulp,” and today you can choose between that size, the “52 ounce X-treme Gulp, the 64 ounce Double Gulp, or the astonishing gallon-sized jug of soda called the Team Gulp.”

Soda portion control has been an interesting debate from the outset. Curiously, the prohibition would have prevented the sale of “big sodas” in fast food restaurants, delicatessens, and movie theaters. The ban only applied to soft-drinks, but not to fruit juice, milkshakes or alcohol, regardless of their calorie content. The ban did not apply to calorie-free sodas either. The ban would not have applied to convenience stores or grocery stores. So, the so called “big gulp ban” would not even have addressed the big gulp sold at 7-11 or similar portioning at other non-restaurant retailers.

Another interesting point, according to the Washington Post,  is that the ban did not address or apparently even consider the “free refills” concept. Yes, it prohibited restaurants providing cups larger than 16 ounces for sugary soda, but it allowed customers to fill that cup as many times as they wished. What fast food does not allow free refills in today's market? 

I struggle to find any purpose in the regulation. If the restriction had been found to be constitutional regulatory action by the courts, then a patron could drink all the sugary soda they want in a fast food restaurant (continuously refilling their 16 oz. cup, but there is the exercise walking back and forth to the soda fountain) and could buy gallon size sugary soda Team Gulp (or similar) from a convenience store. What behavior was going to be curbed by this ban?

In a fast food restaurant, a patron would not have been precluded from buying a 32 ounce diet soda cup, as the ban did not apply to cups or serving sizes for calorie-free soda. So the customer steps to the counter, orders a “super-size” hamburger meal and a 32 oz. diet soda. Then, steps to the soda fountain and fills the diet soda cup with a sugary substitute. 

Would the NY health department have required a "soda cop" to stand by the fountain to assure that the restaurant's 32 oz. "diet cups" are filled only with "diet soda?" While the Veteran's Administration system had bigger fish to fry, they made the news with a story of a man issued a $500 fine for refilling his soda cup; is that the sort of diligent and observant police work that would have been required under the NY "big cup for sugary soda" ban?

Consider the cost associated with providing a soda to a customer. I read an interesting post about the cost. According to the author, a 20 ounce soda breaks down to about $.12 for the soda, $.07 for the cup, $.01 for the lid, and $.015 for the straw. So, the $2.00 soda has a cost of about $.22. 

There is one fast food chain (of course I do not eat fast food, as that would be potentially bad for me, but I have heard) that offers a combination meal that includes two regular hamburgers instead of a single, huge hamburger. Would this or some other inventive chain not have simply begun offering a meal combination that include two 16 ounce soft drinks instead of the banned 32 ounce? The cost of $.22 per soft drink would be unlikely to deter such an offering. Remember, the majority of that cost, $.12 for the actual beverage would remain the same if the soda were in one large cup or two smaller cups The “marginal” or additional cost of providing two cups instead of one would be the $.10 that represents the cup, lid, and straw. If one chain offered two 16 oz. cups for the cost of one in response to the ban, would all the chains follow the lead? Would they have a choice?

The Washington Post reported that in one of the early defeats for the ban, a New York Supreme Court Judge concluded that the ban was “arbitrary and capricious,” because of the many exceptions, the loopholes, and the perception that the ban provided the health department with “virtually limitless authority.” The characterization of the ban seems descriptive in light of the potential issues above.

According to the United States Chamber of Commerce there were many engaged in this “big soda” litigation in New York. The U.S. Chamber of Commerce, The Business Council of New York State, and the NAACP New York State Conference each led coalitions of groups weighing in on the ban. I can find nothing on the web estimating what has been spent litigating this big soda ban. With the many organizations involved, the many “friend of the court” briefs, and lawyer hours invested, it would be an interesting figure to know.

Certainly we have much with which to be concerned in today's America. Obesity is a worrisome health issue (I could stand to lose a few pounds myself). I tend to agree that we could all use a little more "green" and "fresh" in our diets. But is “big soda” (strictly in restaurants) really the issue that needs the immediate focus? According to MedPageToday, the ruling last month is a “setback not defeat.” Staff writer Kristina Fiore explains that other “health policy measures faced similar stumbling blocks early on, but eventually became important health laws.”

One expert quoted in the MedPage article drew a comparison to smoking in public places. He says that in the past courts determined the NY Health Department overstepped its bounds in banning smoking in restaurants, and that decision led to the New York legislature becoming “incensed at the court” and leading to “passing legislation banning smoking in public places.” He seems to suggest that with the recent separation of powers decision, the NY state legislature or NY city council might step in now to legislate a ban on the "big soda."

The "big soda" ban seems hardly comparable to smoking. Has anyone ever documented an injury or death to someone from second hand soda? With so many exceptions, loopholes and enforcement challenges, would the "big soda" ban on large cups for sugary soda in restaurants have had any real, practical effect anyway? In Nancy Reagan's words, I would "just say no."

The ban would have caused restaurants to alter practices such as cup size. It would not have prevented “two for one” 16 ounce drink deals or filling 32 ounce “diet” cups with sugary soda. It might have encouraged consumption at 7-11 and other convenience stores instead of McDonalds and other restaurants. It would thus have given advantage to the unregulated retail stores. It would likely have reduced obesity exactly zero (the effect on "second-hand" obescity that seems to be implied by MedPageToday's expert is beyond me).

Perhaps there is a reason for ideas like the "big soda" ban to be vetted in the open discourse of American legislative debate? Perhaps the NY "big soda ban" with its loopholes and questionable logic would not have survived an open debate in a legislative setting, where these flaws could have been discussed? Perhaps that is why policy is appropriately made by legislative bodies elected by Americans? That is what the New York Court concluded. We will wait to see if the city seeks review by the U.S. Supreme Court. 

In the mean time, try not to sit near anyone who is consuming sugary soda, you never know whether it is a risk to your health. 

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