Tag: food regulation

Send This Napoleon Back, Waiter: Appeals Court Flunks NYC Soda Ban

Welcome news from New York: a unanimous four-judge appeals court has confirmed a trial court order striking down the New York Department of Health’s attempt to ban large soda portions. The decision is here, Newsday coverage here, and our earlier coverage here.

The appeals court ruled that in enacting the ban the NYC department of health had overstepped its legally granted powers. As I observed in this Commentary article in March, New York has its own distinctive body of law by which courts step in to prevent administrative agencies from claiming quasi-legislative powers not clearly delegated to them, the rules laid out in a 1987 case called Boreali v. Axelrod. The appeals court agreed with trial court judge Milton Tingling that Boreali was directly controlling, and that the department had clearly overstepped Boreali’s ban on essentially legislative action by an administrative agency. (Why, you ask, don’t federal courts apply as tough a standard to keep administrative agencies in Washington, D.C. from arrogating to themselves essentially legislative functions? Good question…)

Although the appeals court did not reach the issue of whether the Bloomberg rules were “arbitrary and capricious,” and although neither it nor Judge Tingling reached the underlying issues of individual consumer choice that are at stake, this was far more than just a “win on a technicality.” The rule that government agencies cannot overstep their lawfully granted powers is a vital one in protecting the liberty of the citizen. On this issue, and not this alone, Mayor Michael Bloomberg has acted more as a Napoleon issuing peremptory dictates than as an elected executive carrying out the will of legislators on the City Council and in Albany. 

Napoleons of the political class are a good bit more dangerous to us all than the sugar-laden Napoleons of the bakery shelf. We should rejoice that this one is getting sent back to the kitchen.

When Government Is The False Advertiser, Cont’d

Mayor Bloomberg’s New York City health department has come in for repeated criticism in this space and elsewhere for crusading against salty and fattening foods through ad campaigns that manipulate viewer reactions in ways that border on the misleading and deceptive (“What can we get away with?” famously asked one official). They’re at it again. On January 9, Gotham’s for-your-own-good crew unveiled a new ad warning “Portions have grown. So has Type 2 diabetes, which can lead to amputations,” dramatically illustrated with a photo of an obese man with a stump where his leg had been. But as the New York Times reports, city officials “did not let on that the man shown — whose photo came from a company that supplies stock images to advertising firms and others — was not an amputee and may not have had diabetes.” Instead, they just Photoshopped his leg off, which certainly got the effect they were looking for, albeit at the cost of photographic reality. At an agency developing an ad campaign for a private company, someone might have advised adding a little fine print taking note that the picture was of a model and had been altered, lest the manipulation turn into the story itself, or even attract the interest of federal truth-in-advertising regulators. But the Bloomberg crew probably isn’t worried about the latter, given that their constant stream of hectic propaganda is fueled by generous grants from the federal government itself. Such grants also helped enable a contemplated booze crackdown exposed by the New York Post this month—quickly backed off from after a public outcry—that would have sought to reduce the number of establishments selling alcohol in New York City.

While on the topic of nannyism, the Times also reported this week that Penn State researchers found that the fad for banning so-called junk food in schools had no apparent effect: “No matter how the researchers looked at the data, they could find no correlation at all between obesity and attending a school where sweets and salty snacks were available.” Number of “food policy” types quoted in the article admitting “maybe we were wrong”: zero.

Don’t Tread on My Plate

Last week First Lady Michelle Obama and the U.S. Department of Agriculture unveiled “ChooseMyPlate.gov,” an updating of the federal government’s ongoing efforts to lecture us on how to eat. While the idea of nutrition recommendations from Washington, D.C. isn’t itself new, the past couple of years have seen a lurch toward a more coercive approach, especially under the Obama administration, under pressure from a burgeoning “food policy” movement, as I explain in a new Daily Caller op-ed:

All sorts of nannyish and coercive ideas are emerging from that [movement] nowadays: proposals at the FDA to limit salt content in processed foods; mandatory calorie labeling, which poses a significant burden on many smaller food vendors and restaurants; new mandates on food served in local schools; advertising bans; and on a local level efforts to ban things like Happy Meals at McDonald’s. No wonder many parents, local officials and skeptics in Congress are beginning to say: Back off, guv. It’s my plate.

The fact is that the federal government’s dietary advice has changed often through the years—the Washington Post had a great feature on past federal dietary guidelines, under which sweets and even butter held their place as food groups—and that government’s recommendations have regularly proved wrong and even damaging, a point that Steve Malanga elaborates on in this City Journal piece (“Following the government’s nutritional advice can make you fat and sick.”)

Yesterday, C-SPAN’s Washington Journal had me on opposite Maya Rockeymoore of the group Leadership for Healthy Communities to discuss issues that ranged from the school lunch program to whether Washington should serve as an “arbiter” of contending dietary claims, an idea I didn’t much care for. You can watch here.

The Seen and the Unseen

Quote of the day from outgoing Chairman (and soon-to-be Ranking Member) of the House Agriculture Committee, Collin Peterson (D., MN):

“I’ll be able to take care of sugar, that’s not even a question,” Peterson said. “We’ll keep the same program; it doesn’t cost anything. That won’t be hard.”

(Source: the North Dakota InForum, which has many more gems from the Chairman about why the election is not a problem for Big Ag)

Au contraire, Mr Peterson.  The U.S. sugar program costs sugar consumers, including food manufacturers, billions of dollars a year, by the government’s own figures.

I just love the way that so many politicians (and bureaucrats) assume that if something doesn’t show up as a line item in the budget, then it is essentially free.  Tens of thousands of pages added to the Federal Register every year, placing staggering regulatory burdens on business? Costless! The immense inconvenience to travellers and business people from debilitating lines at airports because of security measures? No need to consider those costs against any supposed security benefits; they’re paid for by the fairies. And the sugar program, which shifts the burden of supporting sugar prices onto consumers rather than taxpayers? Well, it simply “doesn’t cost anything.”

For more of Cato’s work on sugar policy, see here,  here, and here.