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HYPERLINK "" DAILY NEWSOpinionNanny Bloomberg just doesn't get itThe mayor's response to the judge's sugary soda ruling is utterly unresponsive to his legal argumentsBY?JACOB SULLUM?/ NEW YORK DAILY NEWSTUESDAY, MARCH 12, 2013, 6:02 PMALLISON JOYCE/GETTY IMAGESTuesday, Mayor Bloomberg held a large cup as he spoke to the media about the health impacts of sugar at Lucky's restaurant.Since last May, when Mayor Bloomberg unveiled his improbable plan to shrink New Yorkers’ waistlines by shrinking their drink sizes, he has argued that his big beverage ban would not meaningfully interfere with people’s choices but nevertheless would have a substantial impact on calorie consumption. That contradiction, along with the busybody billionaire’s sweeping view of what regulators may do in the name of promoting public health, proved to be his undoing.This week Justice Milton Tingling Jr. of State Supreme Court in Manhattan, responding to a lawsuit by soft drink makers and sellers, ruled that Bloomberg’s drink diktat, which would have imposed a 16-ounce limit on servings of sugar-sweetened beverages, was so riddled with loopholes that it qualified as “arbitrary and capricious” under state law. Tingling also concluded that the Bloomberg-appointed Board of Health exceeded its legal authority by enacting the mayor’s proposal, which he should have brought to the City Council instead.Bloomberg’s response, which boils down to asserting that his regulations are legal because “people are dying” from obesity-related diseases, dodges both of these issues.If Bloomberg’s soft drink restrictions do not qualify as arbitrary and capricious, it is hard to imagine a regulation that would. To begin with, the rules apply to restaurants, food carts and concession stands, but not to convenience stores or supermarkets. Consequently, as Tingling noted, “a person [who] is unable to buy a drink larger than 16 oz. at one establishment... may be able to buy it at another establishment that may be located right next door.” (That drink might even be a 7-Eleven Big Gulp, the epitome of effervescent excess.)Even if this customer stays at the place where the one-pint limit applies, “no restrictions exist on refills, further defeating the Rule’s stated purpose.” Similarly, the city decreed that people may not order a 20-ounce coffee with more than three teaspoons of sugar — but left them free to add as much sugar as they like after they take possession of the drink.Although curbing obesity is the official rationale for restricting beverage servings, the city planned to make exceptions for drinks that have more calories per ounce than soda, such as fruit juices, milk shakes and beer. The exemption for milk-based beverages meant that Starbucks customers could order, say, a Venti White Hot Chocolate with whole milk and whipped cream (640 calories) but not a venti black coffee with four teaspoons of sugar (60 calories). A 20-ounce Coca-Cola, which the city would ban outright from food service establishments, has 243 calories.Given these puzzling distinctions, which plainly are not based on calorie content, you can understand why Tingling concluded that “the loopholes inherent in the Rule... defeat and/or serve to gut the purpose of the Rule.” Instead of rebutting that point, Bloomberg reinforced it, insisting in a press release issued after the decision that “the serving size of sugary drinks does not limit anyone’s consumption.” If so, why bother?Bloomberg also seemed to miss Tingling’s point that the Board of Health’s regulatory mandate does not include everything that might affect a person’s health.“To accept respondents’ interpretation of the authority granted to the Board by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination,” the judge wrote. “The Portion Cap Rule, if upheld, would create an administrative Leviathan [that] would not only violate the separation of powers doctrine [but] eviscerate it. Such an evisceration has the potential to be more troubling than sugar-sweetened beverages.”In his press release, Bloomberg argued that Tingling’s decision must be overturned because “we have a responsibility as human beings to do something, to save each other, to save the lives of ourselves, our families, our friends, and all of the rest of the people that live on God’s planet.” The next day, he clarified that Tingling's decision “was not a setback for me.” Rather, “This is a setback for the people who are dying," and “in case you hadn’t noticed, I watch my diet. This is not for me.”I believe him. After all, Bloomberg has declared that meddling in other people’s lives to protect them from the consequences of their own unenlightened decisions is “government’s highest duty.” But as hard as it may be for Bloomberg to accept, even the most sincere and enthusiastic paternalist is bound by the rule of law.Sullum is a senior editor at Reason magazine and a nationally syndicated columnist. ................
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