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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