If you’ve ever searched for an infamous example of government overreaching its proper bounds, you need look no further than the New York City ban on “sugary drinks.” Last year, on June 12, the city’s Department of Health, through its Board of Health, and with full approval of New York’s mayor, Michael Bloomberg, issued a regulation that limits the sale of “sugary drinks” to containers no larger than 16 ounces. “Sugary drink” is defined as a carbonated or non-carbonated, nonalcoholic, sweetened drink that has greater than 25 calories per fluid 8 ounces of beverage.
Not only couldn’t a customer buy the drink, neither could she buy the cup size violating the regulation for self-service. The Board of Health voted 8-0 to adopt the new rule on September 12, 2012. A multi-party lawsuit was filed exactly one month later and the Supreme Court of the State of New York ruled to overturn the regulation just this month.
In its defense, the Board of Health argued, “There is an obesity epidemic among New York City residents which severely affects public health.” It argued, “The health of its residents affects the economics of a town, village, city, state and nation” and that “New York City … battles to maintain services in light of tough economic times. One of the fiercest budgetary fights is over Medicaid [and] Medicare.” You can start to see the picture – because of the modern welfare state and culture of entitlement it breeds, government must step in to fix us so we don’t break the budget.
And the only way for government to fix us, evidently, is to coerce us.
Now, for anybody who knows Sutherland Institute, you know we’re not opposed to using the law to complement private cultures in helping everyone become their better selves. Indeed, we argue consistently that a free society requires us to become our better selves. For example, we support laws that reduce liquor consumption. Our argument is that liquor doesn’t make any human being their better selves, jokes aside, even though we understand the need for people to self-medicate in a stressful world.
So what’s the difference between Utah’s tough liquor laws and New York City’s ban on Big Gulps? This is a great question if you’re a legislator wondering how you draw the line between appropriate government intervention to maintain a free society and the needless and offensive intrusions of a nanny state.
Of course the first thing a legislator should do is decide upon the purpose of government. Does government in a free society exist to fix the worst about us or to encourage the best within us? Mayor Bloomberg and his health board feel it exists to fix us.
The second thing a legislator should do is to weigh any threat to a free society. Is 20 ounces of Mountain Dew or Coke or Sprite a threat to a free society? How about 20 ounces of Jack Daniels or Wild Turkey or Budweiser? Are we freer, individually, as a result of consuming 20 ounces of Mountain Dew or 20 ounces of Jack Daniels? Hopefully a legislator could see the difference between the impacts of those two beverages on a free society.
Lastly, a legislator should look for competing rights in a free society. Parental rights, even within family breakdown, usually trump any policy situation when kids are involved. Even if there was a threat to freedom from 20 ounces of Mountain Dew, a legislator should determine if a competing right, such as a parental right in the “education and upbringing of a child,” takes priority. But then the legislator would first have to understand why parental rights matter at all – and while that might be the real problem, it’s a subject for another time.
For Sutherland Institute, I’m Paul Mero. Thanks for listening.