Bloomberg’s Ban Banned

English: New York Mayor, Michael R. Bloomberg.

English: New York Mayor, Michael R. Bloomberg. (Photo credit: Wikipedia)

NYC Mayor Bloomberg created a bit of a stir with his planned ban on large sodas. When I first heard about this proposed law, I wrote a blog post against it. As such, I was pleased when  Justice Milton A. Tingling Jr. of the State Supreme Court in Manhattan said that the ban was “arbitrary and capricious.” Because of this, he banned the ban.

Interestingly enough, the judge’s reasoning is similar to my own-I infer this is because we both got it right.

While my specialty is in ethics rather than law, similar principles apply. One principle is that of consistent application-that is, the law must apply in the same way in relevantly similar circumstances. In the case of Bloomberg’s Big Ban, high calorie beverages that are predominantly milk based would be exempt and the law only applied to some business that sell beverages. The problem is, of course, that if the law is aimed at high calorie drinks, it should apply based on the calorie content and not where it is being sold or what provides the calories. Naturally, if a relevant difference could be shown in terms of beverage content or sales venues, then this problem could be addressed.

Another principle is that a law should be efficacious. If a law is such that it cannot fulfill its legitimate purpose, then there is no reason to have such a law. As I argued previously, the law is aimed at combating obesity, yet it can be simply bypassed by going back for refills.

A third key principle in regards to law is that, as per John Locke, the magistrate should act within the legitimate limits of authority. Going beyond such limits is, as Locke argued, tyranny. While the Board of Health does have a legitimate domain (such as ensuring that rat feces is not in the famous NYC pizza), it does not have a mandate to do whatever might fall under the domain of improving the health of the public. As the judge correctly noted,  accepting the legitimacy of the mandate claimed by Bloomberg “would leave its authority to define, create, mandate and enforce limited only by its own imagination,” and “create an administrative Leviathan.”

I do, of course, think people should engage in healthy behavior and I do think the state has a legitimate role in protecting the health of the citizens. However, the ban on large drinks will not do much to help the public and, even if it did, it would be an unwarranted imposition. After all, as Mill argued, the state has the right to impose on an individual to prevent him from harming others. However, the state has no moral right to use its power just because it is believed that compelling people to do or forgo would be better for them.

For those who might wonder, I rarely drink soda (aside from in root beer floats)-but this is a matter of choice. I am, however, going to chug a giant root beer to celebrate the defeat of Bloomberg’s ban.

 

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26 Comments.

  1. Mike,

    “the judge’s reasoning is similar to my own – I infer this is because we both got it right.”

    Inferring the method is the same because the same result was reached? Really? Maybe I misunderstood your point.

    “in relevantly similar circumstances”

    Who determines what is relevantly similar or different about the cases?

    “if the law is aimed at high calorie drinks, it should apply based on the calorie content and not where it is being sold or what provides the calories”

    Not in the case of drugs, so this isn’t a universal principle. Bloomberg got it wrong in this case because he couldn’t apply the law sensibly, pragmatically, to all sales of hi-cal drinks he possibly would like to target.

    Clearly he was taking one step to help prevent obesity by removing one of the more significant contributors that are so temptingly available to those that succumb to this stuff. What evidence is there that kids will buy two small cups to compensate for the lack of a large cup, when they visit the particular outlets he wanted to target. It doesn’t matter that kids could walk into a nearby store and buy a 2 litre bottle if they really wanted to, they would be less likely to do that than stick with a smaller cup from the outlet where they buy the accompanying meal.

    “if a relevant difference could be shown in terms of beverage content or sales venues, then this problem could be addressed”

    You can’t show that without trying. This is complex behaviour stuff. I don’t know what prior evidence Bloomberg had to make him think it might work. Again, this is a pragmatic matter of gathering the evidence that would lead him to think it would work, then monitoring the actual results of a trial. I would suggest that without examining any research in this area, and monitoring the result of such a ban, nobody would really know if the specific targeting would help reduce obesity.

    And banning the use of narcotics is efficacious in reducing their use? How efficacious was prohibition during the 30’s? Smoking? Banning alcohol seemed like a good idea but didn’t work too well, so the ban was lifted. Drugs? Well some states are starting to change their minds on ‘soft’ drugs. But then smoking bans were predicted to increase divisiveness and not to reduce smoking. Hi-cal sodas? Bloomberg wanted to start somewhere. There are many complex behavioural problems that can only be approached by trying.

    “However, the ban on large drinks will not do much to help the public and, even if it did, it would be an unwarranted imposition.”

    Unwarranted like alcohol, recreational drugs, prescription drugs, smoking? They all have different rules governing where and how and how much can be sold. Some bans seem to work and others not. Those that work seem to stick. Like the smoking ban the soda ban doesn’t actually prevent people buying soda (though with cigarettes there is a general age ban). But the soda ban was targeted at certain outlets which specifically encourage immediate high consumption, for-profit.

    And that is quite different from stores that sell large bottles of soda. Cough medicines are available over the counter, and they are intended to be used according to the dose prescriptions on the bottle. But they too can be abused for recreational use by consuming large quantities. You can’t argue that large bottles of soda sold in stores is encouraging immediate consumption, unlike the case of large cups in some food outlets.

    “After all, as Mill argued, the state has the right to impose on an individual to prevent him from harming others. However, the state has no moral right to use its power just because it is believed that compelling people to do or forgo would be better for them.”

    This clearly doesn’t apply universally either. While the smoking ban relates to harm to others, restrictions on recreational drugs and prescription drugs do not. Do you support Mill’s principle to such a principled extent yourself that you would lift all bans on everything that only showed potential self-harm?

    Your arguments seem to contain Libertarian notions: “I can resist, I’m in control of my own consumption, so if you’re not then tough on you; why should your lack of self-control inhibit the profiteering of these fine businesses that have the gumption to sell you this stuff.”

  2. “the ban on large drinks will not do much to help the public”

    Do you really think so? Americans are (very) fat people. If they ate less, they would be healthier, and there would be more for those who are hungry. Everyone gains.

    Your post seems to be the sort of response we often see from Americans when they feel that INDIVIDUALITY, and their rights as an INDIVIDUAL, are under threat. Society — individuals, considered collectively — has rights too.

  3. From my trips there, I have learned that New York City is very expensive to eat in and in addition, very hot in the summer, which means people have to drink something.

    In addition, New York City has marked and obscene differences in wealth between rich and poor. It is an extremely segregated city in terms of class differences, with some neighborhoods looking like the third world and others like country clubs.

    Poor people get thirsty and unlike the rich and upper middle class, they generally go to fast food places to quench their thirst, because traditional restaurants in New York City are very costly.

    It seems that this proposed measure is one more blow against the poor, adding insult (prohibiting big soft drinks) to injury (their low income in an expensive and economically segregated city).

    Maybe instead of prohibiting soft drinks, the government could subsidize healthier drinks, say, fruit juice and milk, by removing
    the rather high sales tax on them, thus promoting their use among low income people.

  4. Steve,

    No, society has no rights. Why? Because society is not a being. Society does not have a consciousness, it doesn’t have sapience, it doesn’t have any decision-making powers. “Society” is nothing more than a very large group of people, who individually have consciousness, sapience, and decision-making powers–and because of that, have individual rights. Tell me, if you’re going to ask “Apple or orange?” do you ask a person what they want, or do you ask “society”? And if you do ask “society,” point to the specific being or entity in question you’re going to pose the question to.

    Trying to anthropomorphize society strikes me as juvenile, simplistic, and ultimately very very stupid.

  5. Swallerstein,

    Perhaps the federal government could stop buying milk and milk ingredients in the insane hope of keeping dairy products high so big agricultural businesses can enjoy their profits.

    There’s a thought.

  6. Jeremy,

    Although the term ‘society’ is an amorphous entity, we can think of it in terms of the government, as a representative body of the citizens of the society. As such I don’t see a problem with the use of anthropomorphic language, as a metaphor, being used in that sense.

    But the subject of ‘rights’ is quite distinct from that. We mostly think of ‘rights’ as something that people have, or even animals; but there is no sense ‘in nature’ in which anyone has rights as such. We confer rights on each other, and on animals in some cases. But really, because this is the nature of rights, as something humans have taken upon themselves to confer, there’s no reason why they can’t be conferred on inanimate objects – like our cars; we might confer the right for them to receive regular servicing. We could even enshrine that into international law. All crazy I know; but there is nothing about rights that means the subjects of a right have to be conscious sapient entities.

    And, when a government asks the public to vote they are asking that society what they want. That the choice is made collectively isn’t really that much different in principle than asking a person, “Apple or orange?”, because in the latter case you end up asking the collective of their neurons to make a decision based on many factors that end up contributing. If you think this isn’t the case it may be that you are persuaded of the unity of human decision making by normal simple behaviour; but humans are often in ‘two minds'; and some split-brain patients are literally so, as the two hemispheres vie for control.

    And, just as many members of the public don’t really understand many of the issues they are voting on it doesn’t require some clever homunculi in the brain to do the deciding – the parts of the brain that feed into the decision making process may only have information about some aspect of the problem. So, it might be that if you are hungry your hunger signals persuade the brain to decide apple over orange, and yet if you are thirsty it might decide orange. You might have cheese on your plate already, and you may feel, as is told to you by neurons of past experience, that you prefer apple with cheese rather than orange. None of these internal processes need have any hint of sapience of their own, much as is the case for many voters.

    Feeling stupid, like feeling offended, is often the perception of the perceiver and not necessarily an inherent cause of the situation perceived.

  7. Ron Murphy,

    “Inferring the method is the same because the same result was reached? Really? Maybe I misunderstood your point.”

    I was joking. Obviously I shouldn’t quit my day job for the comedy club circuit…

    “Who determines what is relevantly similar or different about the cases?”

    Are you asking about the authority governing this matter? If so, this would be the appropriate legal authorities in NYC. If you are asking how we sort this out, I’d go with the usual answer: we’d try to rationally consider the similarities and go with the best argument.

    “Not in the case of drugs, so this isn’t a universal principle. Bloomberg got it wrong in this case because he couldn’t apply the law sensibly, pragmatically, to all sales of hi-cal drinks he possibly would like to target.”

    True-I cannot legally sell pain killers on the street, though a drug store can sell to those who have a prescription. However, the legality of selling soda is rather different from the selling of drugs. Going with the drug analogy, this would be like allowing Publix (a big grocery store) to sell big bottles of aspirin while the small drug store beside it can only sell small bottles (but can sell an unlimited number).

  8. Steve,

    I do think so. Now, I do consider that I could be in error-perhaps the hardship of walking up to the dispenser to refill the cup will cut down on consumption. In support of this, the beverage industry folks believe that the ban would cost them a lot of money and this suggests that it would reduce consumption and thus perhaps have some impact on obesity. Of course, other commentators have contended that the ban would create a backlash effect-that people would drink more because they feel they are being bossed.

    Yes, we are a very fat people. However, our eating less would not help with hunger-there is enough food to feed everyone. The problem is one of distribution. After all, if I forgo big drinks or eat less, this does not result in the food being sent to the hungry.

    I’d argue that to claim that society has rights would involve a reification fallacy or the fallacy of composition. Of course, you probably just mean that we should take into account the consequences for everyone rather than just focusing on an individual.

  9. Swallerstein,

    Milk and juice do get subsidies, but more money goes to supporting corn-specifically high-fructose corn syrup. I do agree with you that if public money is going to subsidize food, it should at least be healthy food rather than empty calories.

  10. Jeremy,

    While I agree that it is a mistake to engage in reification, the idea that there is a collective entity is not simplistic, juvenile or stupid. After all, there are non-stupid arguments for these sorts of collective entities.

  11. Did somebody say ‘The political animal is rational’? I can’t remember. Perhaps a vacation at Socrates’ Spa would help me do a deep recovery of my anamnesis. Who knows… Ah, make that who remembers?

    But my point is that Bloomberg is a political animal; and he does not have to be rational intra vires. He mimics a move that the anti-smoking people used: “If we can’t get the damned stuff banned, at least we can make it harder to indulge”.

    By not taxing sugar, the senior governments are subsidizing the plutocrats of the food manufacturing industry, picking up the cash-costs of added health care for fat-related disease and dumping the non-cash economic costs on those overweight. Bloomberg is smart enough to see all that. Too bad he’s so low-level in the order of governments.

  12. I sent a link to this article last year when we discussed this same issue, but since there has been some rotation among blog participants, I’ll send it again.

    http://www.guardian.co.uk/commentisfree/2012/jun/05/big-soda-ban-michael-bloomberg-struggle

  13. I wonder if we’re all clear WHY Mr Bloomberg is suggesting his ban? It could be (1) because these drinks are full of sugar, (2) because they are carbonated, or (3) because the portion size is WAY too big, encouraging people to over-indulge. I think it makes a difference to the way we should judge his intentions and his suggested ban.

  14. Jeremy,

    “society is not a being.”

    Society is a being in the same sense that a company or a country or an ant community are beings.

    “it doesn’t have any decision-making powers.”

    Then where do our laws come from?

    “Trying to anthropomorphize society strikes me as juvenile, simplistic, and ultimately very very stupid.”

    I’m glad that ill-considered outburst was yours. There but for the grace of God…. :wink:

  15. O Steve,
    Methinks Jeremy’s claim is very much along the same line as Ryle’s suggestion that ‘the University qua thing’ is a category mistake — which causes me to remember that in our modern philosophy, table manners mean as much as the meat of the issue.

  16. Sorry, Boreas, but I haven’t a clue about what you’re trying to say to me. :oops:

  17. Hi Steve,
    You still there? Sorry for the delay. Check out Ryle’s Concept of Mind. I don’t much like the work but it has had a respectable run. And some to this day keep it on their dance cards.

  18. Ryle (in ‘Concept of Mind’):

    “I must first indicate what is meant by the phrase ‘Category-mistake’. This I do in a series of illustrations.

    A foreigner visiting Oxford or Cambridge for the first time is shown a number of colleges, libraries, playing fields, museums, scientific departments and administrative offices. He then asks ‘But where is the University? I have seen where the members of the Colleges live, where the Registrar works, where the scientists experiment and the rest. But I have not yet seen the University in which reside and work the members of your University.’ It has then to be explained to him that the University is not another collateral institution, some ulterior counterpart to the colleges, laboratories and offices which he has seen. The University is just the way in which all that he has already seen is organized. When they are seen and when their co-ordination is understood, the University has been seen. His mistake lay in his innocent assumption that it was correct to speak of Christ Church, the Bodleian Library, the Ashmolean Museum and the University, to speak, that is, as if ‘the University’ stood for an extra member of the class of which these other units are members. He was mistakenly allocating the University to the same category as that to which the other institutions belong.”

  19. Hi Boreas,

    It seems I’m being accused of mistaking society for a sentient creature. If so, I disagree. Of course this is a metaphor, as society is not literally sentient, any more than an ant’s nest is. But it is also the case that society and ant communities display behavioural similarities with living creatures, which make the metaphor/analogy worthwhile. Of course the metaphor/analogy doesn’t stretch all the way, and there are clear and obvious differences between society and a sentient creature. Nevertheless, it is reasonable to consider (for some purposes) groups of people to be gestalt creatures in themselves, and to observe them following goals, and so forth.

    And so, back to the topic of this thread: society has rights too. It is right and proper for society to place certain constraints on individuals. [The exact balance between society and the individual is a discussion for another time. :wink:] In this case, when individuals *and* society are taking great harm from super-super-sized drinks, society is well within its rights to do what it can to moderate consumption of these damaging foodstuffs.

  20. In saying that ‘society’ is “nothing more than a very large group of people”, using the term as if it were akin to ‘crowd’, Jeremy seems rather like the fellow who thinks ‘the University’ is nothing but the aggregate of the colleges, laboratories, offices and so on that he has seen. In fact to ‘see’ the university the co-ordination of ‘all that’ has to be understood too – the university is, as Ryle puts it, the way in which ‘all that’ is organized [and, interestingly enough, it is organised such that it is a legal person with rights in law].

    Whether a society (unlike a crowd) is the type of “thing” that can enjoy ‘rights’ that aren’t fully reducible to those of its members is not settled in the negative simply by noting that society is not the type of thing that enjoys consciousness or sapience (something, rather obviously, nobody here was under any illusions about) and assuming, without argument, that such qualities are necessary (and, apparently, sufficient) in order to be a right-holder.

  21. Some corrections. First, to revisit Jeremy’s original comment, to anthropomorphise society would be to compare it to an individual human being, and I agree this would be mistaken. Society is, by definition, a large group of human beings, and groups of humans do not behave like individual human beings. But they do behave in a sentient manner, and they can reasonably and usefully be considered as gestalt creatures.

    Above, I said that society “is not literally sentient”. I take that back. Society is, quite literally, sentient. At least, society’s behaviour exhibits sentience, and that (I think) is how sentience is determined.

  22. Mike,
    “Yes, we are a very fat people. However, our eating less would not help with hunger-there is enough food to feed everyone. The problem is one of distribution. After all, if I forgo big drinks or eat less, this does not result in the food being sent to the hungry.”

    It has been said for years that there’s enough food, if only it was distributed fairly. Whatever the reason, millions are starving, so there is not enough food *in practice*. Eating less would make crops available for export, or for use as biofuel, so what is not eaten by an American could, in principle, be eaten by an African.

    “I’d argue that to claim that society has rights would involve a reification fallacy or the fallacy of composition. Of course, you probably just mean that we should take into account the consequences for everyone rather than just focusing on an individual.”

    Society gives itself rights. Rights come from humans, after all, and society is a group of humans. As a collective entity, society also acts. It could, in this case, act on behalf of all (i.e. on behalf of itself :smile:) and make super-large drinks illegal, as they are damaging individuals *and* society. Or it could chose not to act.

    Your words seem to imply that society has no rights, and yet it is composed by humans, each one of whom has rights. :?: Do you claim that “society” is not a sentient creature, or do you deny that creature its rights?

  23. Hi Steve,

    There are arguments for there being such things as ‘group rights’ that aren’t exhaustively reducible to the rights of its members. Supposing they work I don’t think ‘society’ is a good candidate for being such a thing myself though it seems plausible to me to say society is not merely an aggregate of individuals (like a crowd is) and that being more than a mere aggregate is a necessary condition for possession of (non-reducible) ‘group rights’.

    To be frank, I find the claim that ‘society is, quite literally, sentient’ mystifying. Sentience is a matter of being able to feel, say, pain, have subjective perceptual experiences (qualia) and so on. This seems, rather obviously, to be something one can’t sensibly ascribe to such ‘things’ as society, Universities etc. If there are good arguments for society having non-reducible rights I don’t think you’re on a good track for finding them – society, is quite obviously not “a sentient creature”.

    “Your words seem to imply that society has no rights, and yet it is composed by humans, each one of whom has rights.”

    The ‘yet’ is misplaced – the expectation that a group of ‘things’ will itself possess the qualities of its members is exactly what leads to the fallacy of composition.

    The burden seems to rest rather heavily on you to give plausible reasons to think there are such things as non-reducible group rights and that society enjoys them.

  24. Steve,

    I stick to my position that even if Americans ate less, then this would not result in more food being available in other parts of the world. The best available data seems to indicate that we produce enough food for everyone-the main problem is the distribution of the food. So, the problem is not (yet) that Americans are gobbling up everything, the problem is that the food is not distributed to areas of need.

    It is also worth noting that while blaming fat Americans has a certain appeal, it is worth considering that countries with hungry people also need to step up to meeting the needs of their people.

    As far as rights go, I would argue that the inference from “individuals have a right” to “society has a right” would seem to run afoul of the fallacy of composition. To use a silly example, while I have the right to marry, society would not have such a right. After all, how would that even work.

    It seems to be more ontologically economical to not accept society as an entity over and above the people and relationships making up society.

    I’d need a very good argument to buy into the idea that society is a creature in any non-metaphorical sense.

  25. OK, maybe sentience is too strong a term to use. However, society is ‘alive’ in the same sense that an ant community is ‘alive’. It can respond to its environment, and to changes in its environment. It can define aims, and pursue them. For example, all the things our governments do are (by definition) actions taken by our society. In this sense I feel that society is a gestalt entity, and that it has rights or entitlements.

  26. Steve,

    It won’t help you with making the case for society being a holder of non-reducible rights but you might be interested in another philosopher’s take on (in favour of) the ‘soda ban’ – “Three Cheers For The Nanny State”

    http://www.nytimes.com/2013/03/25/opinion/three-cheers-for-the-nanny-state.html?pagewanted=all&_r=0

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