City receives support for plan to limit sugary drinks

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Big Gulp. (AP Photo/Richard Drew)
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Dan Goldberg

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The National Association for Hispanic Health, Mount Sinai Medical Center and Montefiore Medical Center were among several organizations that filed an amicus brief last week in support of New York City's ban on large sugary drinks, saying “the problem it addresses is perhaps the gravest and most pervasive public health issue of our time.”

The provision, which does not ban any drink but does limit the size of soda and other sugar-sweetened beverages, is in front of the state’s highest court, the Court of Appeals, after it was struck down by a Manhattan Supreme Court Judge and a mid-level appellate court, which said the law represented an "illegal overreach of executive power." 

The restriction bans beverages over 16 ounces in certain venues, and the rule has been stayed while the court fight continues.

Thursday's amicus brief bolsters the city's case that a public health crisis requires a public response, and that the potential benefits to residents of limiting sugary intake outweigh any potential negative consequences for businesses.

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"The fact is that we have this terrible epidemic underway and we have a responsibility in public health, all of us including the industry, to tackle this epidemic," city health commissioner Mary Bassett told Capital on Monday. 

The groups, which cosigned the letter to the court, cite a 2003 Journal of the American Medical Association study, which found that an American child born in 2000 has a 1 in 3 chance of developing type 2 diabetes. If that baby is a girl, the chance that she will develop the disease is 40 percent. If that baby girl is Hispanic or African-American, the odds that she will develop diabetes during her lifetime are 1 in 2.

“In the context of this health emergency, it is difficult to see the portion-size rule ... adopted by the New York City Board of Health as excessive, or the inconvenience of having to order a second 16-ounce soda as requiring too great a sacrifice,” the brief says. “To the contrary, were it not for the wide array of other measures adopted by the City to counter the crisis, the Rule could if anything be deemed far too modest.”

Whether this is good health policy is not the entire issue. The court must decide if the city's board of health has the unilateral authority to make such a sweeping change without any approval from the city council. 

A health department spokeswoman cited the city's 2006 ban on trans fats as an analogous move to protect the public health.

Mayor Bill de Blasio has been a consistent supporter of the measure, which was proposed and adopted under his predecessor Mayor Michael Bloomberg.

Bassett has also repeatedly voiced her support, telling the City Council last month that limiting sugar-sweetened beverages was an important weapon in the the fight against obesity, which disproportionately impacts lower income residents and minorities.

“About 10 percent of adult calories come from sugar sweetened beverages,” she told the council's health committee. “If people drank 16 ounces rather than 20 ounces of soda, we’d be able to clock millions of pounds in weight reduction.”

But de Blasio and Bassett are in the minority. Polls have consistently shown the rule is unpopular. By a margin of 57 percent to 37 percent, New Yorkers wanted de Blasio to scrap the plan, according to a January Quinnipiac poll.

"This is not a popularity contest," Bassett said. "This is standing up for the public's health care." 

Bassett argued that a robust public response is necessary as a counterweight to an industry that spends billions each year marketing sugar-sweetened beverages to the public, particularly to minorities. 

The amicus brief cites another study, which found the rate of consumption of sugary drinks is significantly higher among Hispanics and African-Americans: one-and-a-half times as high as among non-Hispanic whites.

"The continuing scourge of obesity, type 2 diabetes, and other diet-related diseases is one that has hit New York City particularly hard, especially in its most vulnerable communities," the brief said. 

The city's proposed ban is opposed by the soft-drink industry, the American Beverage Association, as well as civil rights groups including the local chapter of the N.A.A.C.P.

They filed a brief last year with another organization, the Hispanic Federation, whose former president, Lillian Rodríguez López, took a job at Coca-Cola, according to a 2013 New York Times article.

Their concerns focused on the problems that small businesses may face if they are restricted from selling a popular product.

“The ban on sodas will hurt small businesses because the big supermarkets still will be selling the soda in large quantities,” Hazel Dukes, President of the N.A.A.C.P. New York State Conference and a member of the N.A.A.C.P. National Board of Directors, said today. “When you walk into stores in the communities, the first thing you see is soda, not fresh fruit.”

Basset said she was "mystified" by the N.A.A.C.P.'s position and looked forward to meeting with the group to discuss the issue. 
Dukes said she could favor a ban that applied to supermarkets as well but the more important issue was education.

“Persons have to be educated to know this is a major health problem,” she said. “No one will deny that.”

Dukes also noted that if an education campaign were successful, a ban on size might not be necessary because many soda companies offer low-calorie options.

Other critics have raised concerns that the government is over-reaching in trying to control diets.

“The lawsuit is about whether or not the Board of Health had the authority to unilaterally enact the soda ban,” said Chris Gindlesperger, a spokesman for the American Beverage Association. “We look forward to a final resolution of this issue, as the soda ban would limit consumer choice and have a negative impact on businesses throughout the city.”

The city health department maintains that the problem is now so severe it must push ahead, and used statewide data to estimate that obesity-related healthcare expenditures in New York City exceed $4.7 billion annually – an additional average yearly burden of $1,500 for every household in the city. 

“The amicus brief filed today by the National Alliance for Hispanic Health and nine other organizations in support of NYC’s cap on sugary drink portions is a reminder of what this rule is about: protecting the health of New Yorkers,” Bassett said in a press release. “Corporate lawsuits and well-financed marketing campaigns do not change the documented scientific fact that there is an obesity and diabetes epidemic in our city, with the epicenter in our poorest neighborhoods. We must protect New Yorkers from corporate practices that value profits at the expense of their customers’ health.”